Cases from 2013

Case of the Day for Wednesday, November 13, 2013

Duty of Care: Landscaper Superior Maintenance had been hired by the Happy Homeowners Association to landscape and maintain the grounds at beautiful Shanty Acres. It’s a standard contract, one that – among other things – calls for Superior to mow the grass weekly and edge bi-weekly “throughout the normal growing season.” Elsewhere, the contract directs the landscapers to “trim . . . small and lower branches” on trees.

The contract is just a formality. Superior has been in business since the sequoias were seedlings, and its crews know what needs to be done. They often go beyond the literal terms of the contract, which – as it typical for landscaping contracts – were not especially detailed. Over the seasons, Superior maintained Shanty Acres very well, and the contract is repeatedly renewed. The Happy Homeowners Association is indeed happy.

Then one cold, spring day, condominium resident Colleen Hill ventured outside to walk her dog. When she followed the cavorting canine onto the lawn, she tripped over a basal shoot growing from a tree root, fell, and hurt herself. She sued you and the Happy Homeowners Association, claiming that Superior owed her a duty of care because of what it agreed to do in the contract with the Homeowners Association, and that the company was negligent in not trimming the basal shoots.

But how could Superior owe Colleen Hill a duty? Your contract was with the Association, and the Association thought you had done your job. True, you prided yourself on doing more than the contract called for, but that was what a good landscaper did. Thus, your crews normally trimmed basal roots … but if Colleen’s complaint was to be believed, it appears Superior’s workers may have overlooked the shoots that proved a snare to her feet.

This was precisely the situation that Superior faced in Hill v. Superior Property Management, Inc. (Case No. 20120428). The case reached the Supreme Court of Utah earlier this year. On October 11, 2013, the Court handed down its opinion.

Held: The landscaper didn’t owe Colleen a duty of care. As the Supreme Court of Utah observed, the “law draws a critical distinction between affirmative acts and omissions. As a general rule, we all have a duty to act reasonably in our affirmative acts; but no such duty attaches with regard to omissions except in cases of a special relationship.”

The Court agreed that sometimes, such a special relationship might be rooted in a contract. But it held that neither specific obligation in the contract – the obligation to mow the grass weekly and edge bi-weekly “throughout the normal growing season,” or the obligation to “trim . . . small and lower branches” on trees – created a duty flowing from the landscaping company and the injured property owner.

The Court noted that “in the first place, it is not at all clear that mere failure to perform would sustain liability in tort. A breach of contract, after all, typically gives rise to liability in contract … Even assuming that Superior’s maintenance contract could sustain a tort duty, moreover, there is still no basis for liability here, as neither of the provisions required Superior to perform the acts it is now charged with omitting.” The Justices analyzed the contract provisions, pointing out that the accident happened in early spring, outside of the “normal growing season.” What’s more, the dictionary definition of “branch” is “a stem growing from the trunk or from a limb of a tree” or a “shoot or secondary stem growing from the main stem.” Therefore, the Court reasoned, “the ‘branches’ to be trimmed under Superior’s maintenance contract are protrusions from the main trunk only, not separate shoots stemming from the tree’s roots. Superior could not be in breach for failing to trim back those shoots.”

Maybe so, argued the homeowner, but regardless of what the contract may have said, the landscaper’s obligations “were not comprehensively detailed in its maintenance contract, but encompassed acts that it habitually engaged in over time.” The Court rejected this dangerous notion, declaring that there “is no room in our law for a tort duty arising from course-of-performance acts that are nowhere provided by contract.” The Justices reasoned that “where a duty is rooted in the express language of a written contract, the parties are on notice of their obligations, and are in a good position to plan their activities around them. That is not at all true for … extracontractual, course-of-performance acts relied on” by Ms. Hill. “If we were to impose a duty in connection with those acts,” the Court said, “we would establish a troubling perverse incentive. A party facing a tort duty in connection with any undertaking not required by contract would be discouraged from such undertaking. And a disincentive for gratuitous service benefiting another is not the sort of conduct that our tort law ought to countenance. In any event, to the extent injuries ensue from negligence in the performance of such activities, liability would properly be governed by a different branch of our tort law – by the standards governing liability for a voluntary undertaking, a theory we … find unavailing.”

Takeaway: So what does the professional arborist or landscaper learn from Superior’s legal travails? Sure, the landscaper won in the end, but only after four years of expensive litigation.

The first lesson is for the arborist to read the contract form he or she is using. Does it adequately define the services being provided? If the arborist will be performing more services than those described in the contract, those probably should be described in the contract.

At minimum, the contract should clearly provide that any services provided beyond those required by the contract are being provided as a courtesy only, and that the contract does not establish a duty between the arborist and anyone other than the client.

Will this be enough to save the arborist from frivolous lawsuits? Probably not in this society. But an ounce of careful contract drafting now may be worth a pound of lawyers later.

Thursday, November 14, 2013

Encroachment: Not the football kind, but the tree kind. Encroachment governs the rights of adjoining property owners when the trees on one of the properties encroaches on the property of the other. Overhanging branches, invasive root systems, falling debris … those kinds of problems. For years, there have been two different approaches to encroachment under American law. On one end of the continent, New England adopted the “Massachusetts Rule,” that landowners are limited to self-help – but not lawsuits – to stop encroaching trees and roots. And at the other end of these 50 United States was the “Hawaii Rule,” a holding that a landowner could sue for damages and injunctive relief when a neighbor’s tree was causing actual harm or was an imminent danger to his or her property.

Between the two competing rules, Virginia found itself firmly straddling the line. The fair Commonwealth may be for lovers, but it was also for temporizers. The landmark Old Dominion case on the issue, Smith v. Holt, held that the Massachusetts Rule applied unless the tree in question was (1) causing actual harm or was an imminent danger; and (2) “noxious.” This holding brings to mind the maxim “a camel looks like a horse designed by a committee.” Frankly, Smith v. Holt had “committee’ written all over it. It seemed to hold that the Massachusetts Rule applied except where it didn’t. And what did “noxious” have to do with anything?

The Virginia Supreme Court finally addressed the confusing situation several years ago, in a case that bears our review. In Fancher v. Fagella, the Court found itself heist on the “noxious” petard. Everyone could agree that poison ivy was noxious, and most people could agree kudzu was noxious. But how about a cute little shade tree? Shade trees are definitely not in the same league with poisonous or entangling pests, but yet, a cute little shade tree can come out of the ground harder and do more damage than poison ivy or kudzu ever could.

Take the tree in Fancher. It was a sweet gum, a favored landscaping tree as well as a valuable hardwood. But for poor Mr. Fancher, it was Hydra covered in bark. Only halfway grown, Fagella’s sweet gum’s roots were already knocking over a retaining wall, kicking up patio stones, breaking up a house foundation and growing into sewers and even the house electrical system. Fancher sued for an injunction, but the trial court felt obligated to follow Smith v. Holt. There was just no way that a sweet gum tree could be noxious, the local court held, and thus, it would not help the frustrated Mr. Fancher. But the Virginia Supreme Court, wisely seeing that the “noxious” standard was of no help in these cases, abandoned the hybrid rule of Smith v. Holt., an unwieldy compromise that had already become known as the “Virginia Rule.” The Court – noting that the “Massachusetts Rule” was a relic of a more rural, bucolic age – decided that the “Hawaii Rule” was the best fit for modern, crowded, helter-skelter suburban life. It sent the case back to the trial court, instructing the judge that the court should consider whether an injunction should issue.

The case:

Fancher v. Fagella, 650 S.E.2d 519, 274 Va. 549 (2007). Fancher and Fagella were the owners of adjoining townhouses in Fairfax County, Virginia (a largely urban or suburban county west of Washington, D.C., and part of the Washington metropolitan area). Fagella’s property is higher in elevation than Fancher’s, and a masonry retaining wall runs along the property line to support the grade separation. Fancher has a sunken patio behind his home, covered by masonry pavers.

Fagella had a sweet gum tree located a few feet from the retaining wall, about 60 feet high with a 2-foot diameter trunk at its base. Sweet gums are native to the area, and grow to 120 to 140 feet in height at maturity, with a trunk diameter of 4 to 6 feet. The tree was deciduous, dropping spiky gumballs and having a heavy pollen load. It also has an invasive root system and a high demand for water.

In the case of Fagella’s tree, the root system had displaced the retaining wall between the properties, displaced the pavers on Fancher’s patio, caused blockage of his sewer and water pipes and had begun to buckle the foundation of his house. The tree’s overhanging branches grew onto his roof, depositing leaves and other debris in his rain gutters. Fancher attempted self-help, trying to repair the damage to the retaining wall and the rear foundation himself, and cutting back the overhanging branches, but he was ineffective in the face of continuing expansion of the root system and branches. Fancher’s arborist believed the sweet gum tree was only at mid-maturity, that it would continue to grow, and that “[n]o amount of concrete would hold the root system back.” The arborist labeled the tree “noxious” because of its location, and said that the only way to stop the continuing damage being done by the root system was to remove the tree entirely.

Fancher sued for an injunction compelling Fagella to remove the tree and its invading root system entirely, and asked for damages to cover the cost of restoring the property to its former condition. Fagella moved to strike the prayer for injunctive relief. The trial court, relying on Virginia law set down in Smith v. Holt, denied injunctive relief. Fancher appealed.

Held: The Supreme Court abandoned the “Virginia Rule,” adopting instead the “Hawaii Rule” that while trees and plants are ordinarily not nuisances, they can become so when they cause actual harm or pose an imminent danger of actual harm to adjoining property. Then, injunctive relief and damages will lie. The Court traced the history of the encroachment rule from the “Massachussetts Rule” — which holds that a landowner’s right to protect his property from the encroaching boughs and roots of a neighbor’s tree is limited to self-help, i.e., cutting off the branches and roots at the point they invade his property — through the modern “Hawaii Rule.” The Court noted that Virginia had tried to strike a compromise between the two positions with the “Virginia Rule” set out in Smith v. Holt, which held that the intrusion of roots and branches from a neighbor’s plantings which were “not noxious in [their] nature” and had caused no “sensible injury” were not actionable at law, the plaintiff being limited to his right of self-help.

The Court found the “Massachusetts Rule” rather unsuited to modern urban and suburban life, although it may still work well in many rural conditions. It admitted that the “Virginia Rule” was justly criticized because the classification of a plant as “noxious” depends upon the viewpoint of the beholder. Just about everyone would agree that poison ivy is noxious. Many would agree that kudzu is, too, because of its tendency toward rampant growth, smothering other vegetation. But few would declare healthy shade trees to be noxious, although they may cause more damage and be more expensive to remove, than the poison ivy or kudzu. The Court decided that continued reliance on the distinction between plants that are noxious, and those that are not, imposed an unworkable and futile standard for determining the rights of neighboring landowners.

Therefore, the Court overruled Smith v. Holt, insofar as it conditions a right of action upon the “noxious” nature of a plant that sends forth invading roots or branches into a neighbor’s property. Instead, it adopted the Hawaii Rule, finding that encroaching trees and plants are not nuisances merely because they cast shade, drop leaves, flowers, or fruit, or just because they happen to encroach upon adjoining property either above or below the ground. However, encroaching trees and plants may be regarded as a nuisance when they cause actual harm or pose an imminent danger of actual harm to adjoining property. If so, the owner of the tree or plant may be held responsible for harm caused to adjoining property, and may also be required to cut back the encroaching branches or roots, assuming the encroaching vegetation constitutes a nuisance. The Court was careful to note that it wasn’t altering existing law that the adjoining landowner may, at his own expense, cut away the encroaching vegetation to the property line whether or not the encroaching vegetation constitutes a nuisance or is otherwise causing harm or possible harm to the adjoining property.

The Court warned that not every case of nuisance or continuing trespass may be enjoined, but it could be considered here. The decision whether to grant an injunction, the Court held, always rests in the sound discretion of the chancellor and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. In weighing the equities in a case of this kind, the chancellor must necessarily first consider whether the conditions existing on the adjoining lands are such that it is reasonable to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots. In the absence of such a duty, the traditional right of self-help is an adequate remedy. It would be clearly unreasonable to impose such a duty upon the owner of historically forested or agricultural land, but entirely appropriate to do so in the case of parties, like those in the present case, who dwell on adjoining residential lots.

Case of the Day for Friday, November 15, 2013

Force Majeure:

Does anyone remember Hurricane Katrina? Who could forget the immensity of the storm, the devastation, the lives lost, the agony? Doctor and Mrs. Hoerner, that’s who. These folks, Big Easy residents for 25 years, sued their neighbor under the Louisiana Civil Code article that governed negligence. It seems Ms. Title’s trees were kind of bushy, and the neighbors were always cutting them back. Ms. Title, a better neighbor to the Hoerners than they were to her, always let them trim the trees and even cut down an oak once when the Hoerners asked her to. When the big blow came, it took down a couple of Ms. Title’s pine trees, damaging a brick wall, a patio and a pool. Imagine the horror! We bet those poor folks in the Lower Ninth Ward didn’t have it any worse than the Hoerners. But the Hoerners had something those victims in the Crescent City’s worst neighborhood didn’t have: a lawyer. He sued Ms. Title, arguing that because she knew the trees were overgrowing the Hoerners and needed trimming, that she was liable for the damage caused when they toppled. The courts made pretty short work of this. Rather patiently, we think, the Court of Appeals explained to the clueless (or avaricious, take your pick) Hoerners that the trees didn’t fall because of the overhanging branches. They fell because this Cat 5 hurricane hit the city.

The Court held that even the branches had been the cause, Ms. Title could avail herself of the force majeure defense, specifically that even if she had exercised reasonable care, the injury couldn’t have been avoided because of the intervention of a greater force unforeseen by the parties.

Hoerner v. Beulah Title, 968 So.2d 217 (La.App. 4 Cir., Sept. 26, 2007). Be warned: Beulah Title is a person, not a title insurance company. Beulah Title the person had property right behind the home of Linda and Harry Hoerner. The Hoerners complained that that they had had problems with Ms. Title’s pine trees and other foliage along their brick wall since 1991. Yet, every time Dr. Hoerner sought permission to trim the trees and shrubs back to the property line, Ms. Title allowed him to do so. On many occasions, the Hoerners removed branches from Ms. Title’s trees that were hanging over the brick wall. On one occasion, Ms. Title removed an oak tree from her backyard at the Hoerners’ request. The Hoerners did not allege that the trees in question were defective, just that they were bushy.

During Hurricane Katrina, the trunks of Ms. Title’s trees were blown, damaging the Hoerner’s brick wall, patio, pool and landscaping. The damage was not caused by branches hanging over the wall, and the trees did not fall due to lack of maintenance or improper trimming. Nevertheless, the Hoerners sued Ms. Title for repairs to their property, alleging that she was strictly liable under Article 2317.1 of the Louisiana Civil Code. That provision directed that the owner of a thing (like a tree) was liable for damage occasioned by its defect upon a showing that she knew or, in the exercise of reasonable care, should have known of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that she failed to exercise such reasonable care. Ms. Title argued that the trees were not defective and she is entitled to the defense of force majeure. The trial court agreed with Ms. Title, and the Hoerners appealed.

Held: Ms. Title was not liable. Under Article 2317.1, in order to establish liability a plaintiff must demonstrate that the owner of the thing knew, or should have known, in the exercise of reasonable care of the defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the owner failed to exercise such reasonable care. Here, the Hoerners admitted that the trees were healthy, but they complained they were defective because they were neglected and overgrown and placed too close to the brick wall. The Hoerners cited a case where lack of tree maintenance was considered in finding that the owner had knowledge, but the Court observed that case involved a diseased tree. Ms. Title’s trees, on the other hand, were healthy. Based on the evidence, the Court said, it did not find that Ms. Title’s trees were defective for lack of maintenance or location. While the Hoerners had shown Ms. Title’s trees had plenty of overgrowth into their yard, the evidence showed that the trees themselves were blown over and into the brick wall, causing all of the damage to the Hoerners’ property. It was not the overgrowth that did the damage. Additionally, Ms. Title was entitled to the defense of force majeure. The Court observed that the winds of Hurricane Katrina caused trees to fall and damage property regardless of maintenance and/or location all over the Greater New Orleans area. Thus, she could not be liable for the fallen trees under any circumstances.

Case of the Day, Monday, November 18, 2013

FALLING BRANCHES

The unusual late-season storms that ran from western Illinois to the Atlantic Ocean last night reminded us of falling trees. And this reminded us of a complaint we received from unhappy homeowner Sylvia Glade of urban Cincinnati (not her real name, of course). She wrote us to ask about her neighbor’s mighty oak tree. It seems the tree had a branch overhanging Sylvia’s home. The branch constantly dropped sticks, even as the tree shed branches regularly. As far back as 15 years ago, Sylva began asking her neighbor to do something with the tree, which Sylvia considered to be dangerous. A tree expert Sylvia hired to look at her trees agreed, saying the big oak should go.

The neighbor was unmoved. She told Sylvia that she could cut down the tree at Sylvia’s expense, but then denied her the right to enter the property to do so. With the property line hard up against Sylvia’s house, without her neighbor’s cooperation she couldn’t even cut away the branch.

The good news is that Sylvia doesn’t have to worry about that branch any more. The bad news is that that’s because the branch fell on a windy day, crushing two floors of her house. The neighbor’s insurance policy said, “Oops, act of God! Not our responsibility.” Sylvia thinks God should be left out of things, because the branch — which broke right at the trunk — looked plenty decayed.

So Sylvia has asked us: The insurance company says the neighbor, a nice old lady, had no idea the tree wasn’t healthy. “She didn’t know, so we don’t owe,” the company’s mantra seems to be. Sylvia says she told the neighbor on many occasions, and even the neighbor admits she saw decayed branches that had fallen from the tree, and she hired Sylvia’s son to carry some large ones away. But Sylvia wondered what the standard is.

We start with the Massachusetts Rule: a homeowner usually has no remedy against overhanging branches that drop the usual leaves and nuts in season, other than his or her right to trim the branch back to the boundary line. That Rule has come under some fire recently, notably in the Virginia Supreme Court case of Fancher v. Faglia in September 2007. The Court there said that where the tree is a nuisance, the owner of the tree is liable for removing it.

No dice, the Court said. The trespass would only work if the tree were an absolute nuisance, and that isn’t the case. Mrs. Jordan would be liable if she actually knew the tree were dangerous, or had constructive notice of the danger. She didn’t and the plaintiff, although vociferous in her condemnation of the tree, admitted she never told Mrs. Jordan.

In Sylvia’s case, the insurance company is wrong. It’s not enough that the neighbor says she didn’t know the branch was dangerous. She couldn’t be on constructive notice, either, which means that she couldn’t have reasonably known. If Sylvia is right, the evidence will show the neighbor was told many times the tree was dangerous. And other Ohio cases (such as Wertz v. Cooper) suggest the neighbor — being an urban dweller — has a greater duty to inspect her trees than would a country squire. The evidence suggests she was told, she saw the branches over the years, and she even hired Sylvia’s kid to haul off big branches that had fallen.

The insurance company may want to rethink its position and start looking for its checkbook.

Nationwide Insurance Company, et al. v. Jordan, 639 N.E.2d 536 (1994). This action arose between adjoining landowners as a result of the falling of a mammoth maple tree. The insurance company, which had paid the damages to its insured’s place, sued for trespass and negligence. The defendant tree owner testified that she had no notice the tree was susceptible to falling. Her tenant likewise testified that she had no notice of the tree’s danger. The defendant’s tree service manager testified that he worked on the property’s trees every two years, and that the tree in question was not unsafe two years before it fell. The only person to testify to notice that the tree was rotten and likely to fall was the plaintiff’s insured.

The trespass claim arose because the plaintiff maintained that the falling tree trespassed on the insured’s property. The trial court made short work of this, holding that the only way liability could be imposed on the Jordans without proof of fault would be if the tree were an absolute nuisance. Growing trees on property, even urban property, are not absolute nuisances, the trial judge said. Thus, the insurance company had to prove that Mrs. Jordan either knew or had constructive knowledge that the tree was likely to fall. The insurance company couldn’t prove that, so the trial court found for Mrs. Jordan. The insurance company appealed.

Held: Mrs. Jordan was not liable. The Court said that there was no evidence that Mrs. Jordan actually knew or had a reason to know that the maple tree was in danger of falling. The insurance company’s insured complained that the tree’s propensity to fall was obvious to her, but she admitted he never told Mrs. Jordan. The Court observed that “[h]ad the plaintiff conveyed this knowledge to her neighboring landowner, the danger might well have been obviated, or, alternatively, the plaintiff’s hands would be clean and the defendant would have been on notice and resultantly liable for the fall.”

The Court further held that maintenance of a tree on an owner’s property was not an “absolute nuisance,” and thus the adjoining landowner could not proceed merely upon strict liability against owner, but, instead, was required to prove negligence. To recover on a theory of negligence arising out of falling tree, a plaintiff’s evidence must establish that defendant had actual or constructive notice of patent danger that tree would fall. Here, Mrs. Jordan did not have “notice” or “constructive notice” of tree’s dangerous condition. She and her tenant testified that they had no notice of tree’s danger, her tree trimming company worked on property’s trees every two years and found that tree in question was not unsafe two years before it fell.

Case of the Day, Tuesday, November 19, 2013

IF A TREE FALLS ON A CAR, AND THERE’S NOBODY TO SUE, DOES IT STILL MAKE A NOISE?

After the Virginia Supreme Court decided in Fancher v. Fagella that Linda Landowner has a duty to ensure that her trees doesn’t become a nuisance to her neighbor Arnie Adjacency, you could be forgiven for reasoning that she also has a duty to be sure that her trees don’t fall on Mortimer and Mildred Motorist. After all, a duty to protect others from physical harm ought to rank higher on the hierarchy of social good than keeping Arnie’s retaining wall from collapsing.

One of the beauties of the law, however, is that it often does not make sense. The Virginia Supreme Court had an opportunity to underscore that unsurprising phenomenon last year, when it ruled that Fancher’s departure from the old Virginia Rule of Smith v. Holt didn’t extend to a landowner’s duty to the passing public. When a tree on the front yard dies, decays and falls in the road, let the driver beware …

The tree was located about 16 feet from the edge of the road, on land owned by Dunlora South. At the time of the mishap, the road was traveled by about 25,000 vehicles per day. The tree, approximately 25 inches wide was “dying, dead, and/or rotten” at the time it fell, and had been in this condition for a period of “many years and exhibited visible signs of decay, which were open, visible and/or obvious.” According to Cline, the tree’s condition was or should have been known by Dunlora, just as it should have been aware of the hazards presented by trees being next to the public highway. Cline sued, but the trial court held that Virginia law did not provide for recovery of personal injury damages caused by a private tree falling on a public highway. Cline appealed, and the case reached the Virginia Supreme Court.

Held: The Court held that, even after Fancher v. Fagella, a private landowner was not responsible for damages to a person using a public highway, when that damage was caused by a tree located on the landowner’s property. At common law – that is, law imposed and changed incrementally by decisions handed down judicial decision – a landowner owed no duty to those outside the land with respect to natural conditions existing on the land, regardless of the danger posed by such dangerous conditions. Although Virginia courts had never recognized that principles of ordinary negligence apply to natural conditions on land, in Smith v. Holt, an adjoining landowner was held to have a nuisance cause of action if injury was inflicted by the protrusion of roots from a noxious tree or plant on the property of such adjoining landowner. The Court observed that the duty it recognized in Smith v. Holt was “in accord with the broad common law maxim: “sic utere tuo ut alienum non laedas” – one must so use his own rights as not to infringe upon the rights of another … The principle of sic utere precludes use of land so as to injure the property of another.” It was this principle that gave birth to the “Virginia Rule,” a splitting of the difference between the Massachusetts Rule and the Hawaii Rule.

Fancher changed a lot, the Court admitted. It modified Smith’s “Virginia rule” by discarding the subjective requirement of “noxious” nature, and imposing a limited duty on owners of adjoining residential lots to protect against actual or imminent injury to property caused by intruding branches and roots. Fancher articulated a rule allowing relief where trees encroaching onto the land of another begin to constitute a nuisance, that is, when they encroach upon the property of another such that they cause actual harm or the imminent danger of actual harm. Fancher thus recognized that a trial court must determine whether circumstances are sufficient to impose a duty on the owner of a tree to protect a neighbor’s land from damage caused by its intruding branches and roots.

But the Court held here that the Fancher rule imposing a duty on a tree owner to protect a neighbor’s land from damage caused by the tree, only “addresses a narrow category of actions arising from nuisance caused by the encroachment of vegetation onto adjoining improved lands.” The Fancher and Smith duties are dramatically different than imposing a duty on a landowner to monitor the natural decline of his or her trees adjacent to a roadway. Fancher does not impose a duty on a landowner to inspect and cut down sickly trees that have the possibility of falling on a public roadway and inflicting injury.

Instead, the duty owed by adjoining property owners is to not do anything to make the highway more dangerous than it would be in its natural state. In this case, no one suggested that Dunlora engaged in any affirmative act that made its property adjoining the highway different than it had been in its natural state. Cline’s complaint was that Dunlora failed to act, and Virginia common law tort principles do not hold that a landowner owes a duty to take affirmative acts to protect travelers on an adjoining public roadway from natural conditions on his or her land.

Case of the Day, Wednesday, November 20, 2013

ENCROACHMENT, MASSACHUSETTS STYLE

Encroachment … not the neutral-zone penalty that will cost the defense five yards. Rather, encroachment is what happens when your neighbor’s tree roots break into your sewer system, when leaves and nuts are dumped into your gutters, or when the branches rain down on your car or lawn. The law that governs rights and responsibilities when a neighbor’s tree encroaches on your property in only about 80 years old. Before that time, a simpler time perhaps, people didn’t resort to the courts quite so much.

The “Massachusetts Rule” you see referenced so often in tree encroachment matters arose in Michalson v. Nutting, 275 Mass. 232, 175 N.E. 490, 76 A.L.R. 1109 (Sup.Jud.Ct. Mass. 1931). This is the grand-daddy of encroachment cases, the adoption of what has become known the self-help mantra of neighbors everywhere. In Michalson, roots from a poplar growing on the Nuttings’ land had penetrated and and damaged sewer and drain pipes at Michalson’s place. As well, the roots had grown under Michalson’s concrete cellar, causing cracking and threatening serious injury to the foundation. Michalson wanted the Nuttings to cut down the tree and remove the roots. They said “Nutting doing.”

Encroaching tree roots can sometimes be unsightly

Michalson sued, asking for a permanent injunction restraining the Nuttings from allowing the roots to encroach on the his land. Oh, and Michalson wanted money, too. The trial judge found the Nuttings were not liable just because their tree was growing. He threw Michalson’s lawsuit out, and Michalson appealed.

Held: In what has become known as the “Massachusetts Rule,” the Supreme Judicial Court of Massachusetts held that a property owner’s remedies are limited to “self help.” In other words, a suffering property owner may cut off boughs and roots of neighbor’s trees which intrude into another person’s land. But the law will not permit a plaintiff to recover damages for invasion of his property by roots of trees belonging to adjoining landowner. And a plaintiff cannot obtain equitable relief — that is, an injunction — to compel an adjoining landowner to remove roots of tree invading plaintiff’s property or to restrain such encroachment.

Case of the Day, Thursday, November 21, 2013

The law of encroaching overhanging trees runs a continuum from total self-help (the “Massachusetts Rule”) – as we discussed yesterday – to tree owner liability (the “Hawaii Rule”) with several different flavors in between.

In Whitesell v. Houlton, 632 P.2d 1077 (App. Ct. 1981), a Hawaiian appellate court first adopted what is generally known as the “Hawaii Rule,” which held that when there is imminent danger of overhanging branches causing “sensible” harm to property other than plant life, the tree owner is liable for the cost of trimming the branches as well as for the damage caused.

Maybe the court’s holding that the Whitesell v. Houltontree was a nuisance arose from the hard facts of the case: the tree was a massive banyan tree, with a 12-foot trunk and 90 foot height. Perhaps it was the political and cultural nature of the Islands is far removed from the flintier New Englanders and the type of self-reliance embraced by the “Massachusetts Rule.” For whatever reason, if a branch from a healthy tree in Massachusetts is in danger of falling into a neighbor’s yard, he may trim it at his own expense … but that’s it. In Hawaii, overhanging branches or protruding roots constitute a nuisance when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit. Then, the damaged or imminently endangered neighbor may require the owner of the offending tree to pay for damages and to cut back endangering branches or roots. If such is not done within a reasonable time, the neighbor may cause the cut-back to be done at tree owner’s expense.

Nothing in this ruling prevents a landowner — at his own expense — from cutting any part of an adjoining owner’s trees or other plant life up to his property.

Whitesell v. Houlton, 632 P.2d 1077 (App. Ct. 1981). The Whitesells and Mr. Houlton lived next to each other. Mr. Houlton owned a 90-foot tall banyan tree with foliage extending 100 to 110 feet from the trunk. The tree overhung the Whitesells’ property. and the two-lane street fronting both properties. The Whitesells asked Mr. Houlton repeatedly over a two-year period to trim the tree, and they took it upon themselves to do so at various times. Their VW microbus was damaged by low-hanging branches, their garage roof was damaged by some intruding branches from the tree, and they identified branches damaged in a storm that were in danger of falling.

Despite their entreaties, Mr. Houlton did nothing. Finally, the Whitesells hired a professional tree trimmer who cut the banyan’s branches back to Houlton’s property line, and then sued Mr. Houlton to get him to pay.

The trial court sided with the Whitesells, and ruled that Mr. Houlton had to pay. He appealed.

Held: Mr. Houlton had to pay. The court surveyed different approaches taken by other states, identifying the “Massachusetts Rule” holding that Mr. Houlton had no duty to the Whitesells, or the “Virginia Rule” that said Mr. Houlton had a duty to prevent his tree from causing sensible damage to his neighbor’s property.

The Court agreed with Mr. Houlton that “the Massachusetts rule is ‘simple and certain’. However, we question whether it is realistic and fair. Because the owner of the tree’s trunk is the owner of the tree, we think he bears some responsibility for the rest of the tree. It has long been the rule in Hawaii that if the owner knows or should know that his tree constitutes a danger, he is liable if it causes personal injury or property damage on or off of his property . . . Such being the case, we think he is duty bound to take action to remove the danger before damage or further damage occurs.” This is especially so, the Court said, where the tree in question was a banyan tree in the tropics.

Thus, the Court adopted what it called “a modified Virginia rule.” It held that “overhanging branches which merely cast shade or drop leaves, flowers, or fruit are not nuisances; that roots which interfere only with other plant life are not nuisances; that overhanging branches or protruding roots constitute a nuisance only when they actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit; that when overhanging branches or protruding roots actually cause, or there is imminent danger of them causing, sensible harm to property other than plant life, in ways other than by casting shade or dropping leaves, flowers, or fruit, the damaged or imminently endangered neighbor may require the owner of the tree to pay for the damages and to cut back the endangering branches or roots and, if such is not done within a reasonable time, the damaged or imminently endangered neighbor may cause the cutback to be done at the tree owner’s expense.”

The Court pointed out that this rule did not strip a landowner of the right, at his or her expense, to trim a neighbor’s overhanging tree or subterranean tree roots up to the property line.

Mr. Fox had a cottonwood tree he loved dearly. His neighbors didn’t fall into the same category, however. They hated the messy tree with the invasive and prolific root system. Like the banyan tree in Whitesell v. Houlton, there was a lot about Mr. Fox’s cottonwood not to like.

A time-honored legal maxim is that “hard cases make bad law.” That may have accounted for the trial court decision against Mr. Fox, but more level-headed weighing of the competing property and societal interests occurred in the Court of Appeals.

Abbinett v. Fox, 103 N.M. 80, 703 P.2d 177 (Ct.App. N.M. 1985). The Abbinetts and Fox formerly owned adjoining residences in Albuquerque. The Abbinetts sued, alleging that while Fox owned his place, roots from a large cottonwood tree on his property encroached onto their land and damaged a patio slab, cracked the sides of a swimming pool, broke a block wall and a portion of the foundation of their house, and clogged a sprinkler system.

Cottonwoods are known for their intricate and aggressive root systems

The Abbinetts asked for an injunction against Fox. The trial court found against Fox for $2,500, but denied injunctive relief to force Fox to remove the tree roots. Instead, the Court entered an order authorizing the Abbinetts to utilize self-help to destroy or block the roots of the cottonwood trees from encroaching on their land. Plaintiff appealed.

Held: The New Mexico Court of Appeals grappled for the first time with the Massachusetts Rule, the Hawaii Rule and the Smith v. Holt-era Virginia Rule. Instead, it adopted a modification of all of these, finding that when overhanging branches or protruding roots of plants actually cause – or there is imminent danger of them causing – “sensible harm” to property other than plant life, the damaged or endangered neighbor may require owner of the tree to pay for damages and to cut back the endangering branches or roots. Such “sensible harm” has to be something more than merely casting shade or dropping leaves, flowers or fruit. In so doing, the New Mexico Court anticipated the Virginia Supreme Court’s Fancher v. Fagella holding by about 22 years.

The New Mexico Court also held that it is duty of a landowner to use his property in a reasonable manner so as not to cause injury to adjoining property. This is the Hawaii Rule. And the landowner who suffers encroachment from the tree of another may — but is not required to — “abate it without resort to legal proceedings provided he can do so without causing breach of peace.” This, of course, is the heart of the Massachusetts Rule. The New Mexico Court called all of these holdings a “modified Virginia Rule,” as indeed it was.

The Court held that a trial court may grant both damages for already incurred injuries and injunctive relief to prevent future harm, where there is showing of irreparable injury for which there is no adequate remedy at law.

Case of the Day – Monday, November 25, 2013

STAKING A CLAIM

We’ve all seen those spindly trees that cities and towns plant by the hundreds, skinny things supported by one or more posts and guy wires, standing on tree lawns and in medians with not much more than a pathetic possibility that thy might someday be majestic shade trees.

One of these staked and wired sentinels fell in high winds one night, and the City of Kenner, Louisiana, sent one of its crews to repair it. They replanted it in the same home and rewired it with the same guy wires — hardly a prescription for a tree with a future. And it turned out that the tree’s future at that point could have been measured on a stopwatch. Within hours, it fell again in high winds, this time onto Mrs. Sampedro’s car.

The Sampedros sued, claiming that the City had negligently placed guy wires on the tree, and that anyway, the City should be strictly liable whenever one of its trees fall. The trial court granted summary judgment for the City.

Strict liability’s a great thing for a plaintiff. A plaintiff is generally relieved from proving any more than that something injured him or her, and that the defendant owned or controlled it. Negligence is irrelevant. But in 1995, the Louisiana legislature gutted strict liability where a municipality was a defendant. Even in strict liability cases, the lawmakers said, the plaintiff had to prove that the municipality had notice of the defect.

The Court here ruled that it didn’t matter that the Sampedros had an expert who testified that the guy wires should have been placed differently. There were no published guidelines on how to guy a tree, and anyway, the City had planted hundreds of trees in the year before the accident, with only about a dozen of them falling. That’s about a 4% failure rate for those math whizzes among us. Not bad: imagine if the airline industry only had 2,000 crashes per day out of its 49,000 flights.

But the numbers seemed right to the Court. High winds had knocked over the tree, it said, not bad guy wires. Of course, this begs the question of why guy wires were there to begin with, if not to keep trees from falling in high winds. But Mrs. Sampedro had to repair her own car. The City was not liable.

Sampedro v. City of Kenner, 989 So.2d 111 (La.App. 5 Cir., 2008). Rosa Sampedro was driving past the intersection of Williams Boulevard and Granada Street when a tall, slender oak tree fell into the path of her vehicle. Mrs. Sampedro, who was wearing her seat belt, braked quickly and struck her knees on the dashboard of her vehicle. The tree damaged her vehicle but no other vehicles were involved. A police officer said he thought that high winds caused the tree to fall. The Sampedros sued the City of Kenner and its insurer.

Trial testimony showed that the day before the accident, a driver lost control of his pickup truck at the same intersection and knocked down the oak tree in question. The next day, a maintenance crew from Kenner’s Department of Public Works re-planted the tree, securing it with guy wires on three sides as it had been prior to the accident. The Public Works crew used the same guy wires attached to the tree and placed them close to the base so as not to interfere with the mowing of the grass on the median. A witness from the city admitted the alternative would have been to put the guy wires farther out and instruct the mowers to be careful. The Public Works Department had planted 200 to 300 trees in Kenner in the prior year, and the department had received about a dozen complaints of leaning or fallen trees since that time. It had never received a complaint regarding the tree in question.

The court found for the City, concluding it did not have notice of a defect before the accident so it was not strictly liable for Mrs. Sampedro’s damages. Even if it had had notice, the City was not negligent under for the placement of the tree in question. The Sampedros appealed.

Held: The City was not liable. Louisiana law provided two theories under which the City might be held liable for damages: negligence under Louisiana Civil Code §2315 and strict liability under Civil Code §2317. Under strict liability, a plaintiff was relieved of proving that the owner of a thing which caused damage knew or should have known of the risk involved. In 1985, however, the Louisiana Legislature eviscerated this distinction in claims against public entities by requiring proof of actual notice of the defect which causes damage, thus making the burden of proof the same under either theory.

The Sampedros argued the City of Kenner was negligent because of its “want of skill” in replanting the tree that had been struck by a car the previous night. They claimed the City was negligent because the Public Works Department improperly erected the tree by placing the guy wires too near the base of the tree and too low on the trunk of the tree. They presented an affidavit from a horticulturist stating that the City “improperly tied the guy wires too low on the trunk to provide adequate stability.” The record, however, contained no guidelines for guy-wire placement that were not followed by the City of Kenner or procedures that were lacking in its installation of trees. By 2003, the City had planted between 200 and 300 trees since 2000 in the same manner as the tree in question under the direction of a landscape architect and had received only a dozen complaints of leaning or falling trees.

The Court ruled that the Sampedros had not met their burden by merely arguing that the placement of the guy wires was improper, causing the tree to fall over in high winds.

As for the Sampedros’ claim that the City was strictly liable for their damages because it knew of the defective guy wires and failed to correct the defect, the Court ruled that the complaint was foreclosed by law. Under the 1995 amendment to Louisiana’s Civil Code, “no person shall have a cause of action against the public entity for damages caused by a condition under its control absent a showing of actual or constructive notice of the particular condition and a reasonable opportunity to remedy the defective condition.”

The Sampedros had to establish that the thing which caused the damage was in the custody of the defendant, that it was defective, and that the defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time. The law defines constructive notice as the “existence of facts which infer actual knowledge.”- The Sampedros contended that the City of Kenner was aware that the tree had been knocked downed the night before this accident so it was aware that “the defective guy wire locations … had failed the night before the accident.” The Court didn’t buy it. The record supported the theory that the tree fell because of high winds the night before. The fact that a tree was knocked down then re-planted “securely” did not constitute constructive notice of a defect in the guy wire or the tree’s placement.

Dan was a healthy, 26-year old recreational football league kind of guy. He was playing flag football with some buddies in the Dome Football League, using an indoor facility owned by the Town of Tonawanda. Of course, you need to mark the boundaries of the football field, and — necessity being the mother of invention — someone used a softball glove as a marker.

Dan stepped on the glove during a moment of football derring-do, and he was injured. So of course, he threw a yellow hankie at the Football League and the Town. The Town and League threw their own red flags, asking the booth, that is to say, the trial court, to review and throw out the case. The trial court refused to do so.

The appellate court, however, penalized Dan 15 yards and loss of down. When someone engages in an injury-prone event, like flag football, he or she (usually “he” in case of football, but there are exceptions), consents to reasonably foreseeable consequences of the activity. There are always sidelines markers, the Court observed, and Dan didn’t show that using a softball mitt was created a danger any greater than using the usual cones or plastic flags employed by the League.

So what does this have to do with trees? When people engage in outdoor activities in which they come in contact with trees, roots, stumps and holes in the ground, it’s always a fair question whether they assumed the risk when they elected to ski, mountain bike, run a 5k or whatever they were doing at the time. And if you’re a Dan, be prepared to prove that the hazard you confronted was something over and above what you could reasonably expect to encounter in the activity.

Gardner v. Town Of Tonawanda, 850 N.Y.S.2d 730 (N.Y.A.D. 4 Dept., 2008). Dan Gardner, a 26-year old flag football enthusiast, slipped and fell on a baseball glove that he and his buddies were using as a sideline marker during a recreational indoor flag football game organized by the Dome Football League and played in a facility owned by Town of Tonawanda. Dan was experienced in playing recreational flag football games on the indoor artificial turf field and he knew the sidelines of the field were marked with orange plastic cones and that the referee had discretion to use other types of markers on the sidelines as well. Dan said he was unaware that a baseball glove was being used as a sideline marker, but he didn’t have any evidence supporting his contention that the risk of slipping on the baseball glove was greater than the risk of slipping or tripping on the cones or plastic flags usually used as sideline markers. But that didn’t stop him from suing the Football League and the Town. The defendants moved for summary judgment, but the trial court denied it.Held: Summary judgment was granted to the Town, and the case dismissed. The Court concluded that Dan assumed the risk of the injuries that he sustained because the use of the baseball glove as a sideline marker didn’t create a dangerous condition over and above the usual dangers that are inherent in recreational flag football.

The doctrine of primary assumption of the risk generally constitutes a complete defense to an action to recover damages for personal injuries and applies to the voluntary participation in sporting activities. As a general rule, the Court said, participants properly may be held to have consented by their participation to those injury-causing events which are known, apparent or reasonably foreseeable consequences of their participation. Such injury-causing events include the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.

Case of the Day – Wednesday, November 26, 2013

WHO TO INVITE FOR THANKSGIVING?

The Estes will probably be going out for their turkey this year. It’s a cinch — whether it’s the Thanksgiving special at Bob Evans or a deep-fried bird on the back porch, they won’t be dining with their neighbors, the Gertzes.

A dispute about a suburban boundary line ended up with one set of neighbors, the Gertzes, training a battery of surveillance cameras on their former friends, the Estes. If that wasn’t enough, Mrs. Gertz began using a loudspeaker to hurl insults — rather graphic ones which left the court blushing — at the Estes daughters. And then there was the fence.

Robert Frost said that good fences make good neighbors, but he hardly had this fence in mind: an 8-foot tall monstrosity painted orange and black, studded with thousands of protruding nails and large warnings against climbing and trespassing painted on the Estes’ side like so much gang graffiti. In fact, the whole thing looked rather more like the Berlin Wall come to Hebron, Indiana.

The Estes sued under the “spite fence” statute. The Gertzes protested that they hadn’t built a spite fence, but rather just a modest enclosure to protect some delicate saplings they had planted, as well as to permit the raising of alpacas and llamas. After all, they didn’t want any errantly roaming cattle to gnaw on the young trees or, for that matter, to let the llamas and alpacas flee to return to South America. The Court wasn’t convinced. After all, the Gertzes’ permit application called the fence “residential,” not “agricultural.” Second, the fence didn’t enclose the young trees, making it useless as a cattle barrier. Finally, the cameras, the loudspeaker and the studded fence — not to mention the testimony of deteriorating relations between the plaintiff and defendant — made it clear to the Court that the fence was erected maliciously.

The Gertzes also tried a creative technical argument that because a permit had been issued for the fence, the Indiana “spite fence” statute had been trumped by local approval. The Court noted that the permit was for a 7-foot fence, not the 8-foot plus fence the Gertzes had put up, and anyway, a local permit did not excuse compliance with the statute.

Gertz v. Estes, 879 N.E.2d 617 (Ct.App. Ind., 2008). Oh, the neighbors from hell! David and Nichelle Gertz started out liking their neighbors, Douglas and Susan Estes, but that fell apart. David and Nichelle had multiple surveillance cameras trained on their neighbors — even when they purported to get along — but after the boundary line was disputed, things got so bad that the Estes notified the Gertzs that they intended to install a fence, but before they could do so, the Gertzs built one of their own. The Gertzs applied for and obtained a local permit to build a 7-foot high fence, but the final fence was 8 feet high, 720 feet long, and with thousands of nails protruding on the Estes’ side up to a half inch. The words “NO CLIMBING” and “NO TRESPASSING” were painted in orange and black on the middle horizontal slat, and two more cameras — for a total of seven surveillance cameras — were installed on top of the fence.

The Gertzs also used a public address system to aggravate the Estes, including making “lewd comments” to the Estes daughters, which the Court blushingly refused to repeat in the opinion. The Gertzs called the sheriff at least eighteen times to report various activities of Douglas and Susan Estes.

The Estes sued under Indiana’s “spite fence” statute for removal of the fence. The Gertzs testified that the fence was necessary to protect eighteen-inch tree seedlings they had planted. The fence did not enclose any area, but the Gertzs said they intended to enclose the fence at some point so that they could raise llamas, alpacas, or sheep. The trial court found that there was “no justifiable or necessary reason for the fence installed by [David and Nichelle] to exceed six (6) feet . . .” Furthermore, it found that “the fence was maliciously erected and now maintained for the purpose of annoying [Douglas and Susan].” The trial court ordered the fence removed, and the Gertzs appealed.Held: The fence had to go. The Court found that the evidence and the reasonable inferences drawn from it fully supported the trial court’s findings. As to the Gertz’s defense that it was for agricultural purposes, the Court observed that their permit application indicated that the “use” of the fence was “residential” and the fence did not form an enclosure, making it useless for livestock. The Court said that the Gertz’s conduct and the extraordinary nature of the fence overcame David’s assertion that the 8-foot fence was intended to protect eighteen-inch tree seedlings.

Likewise, the fact that a local permit was granted to build a 7-foot wooden fence parallel to property line did not trump the “spite fence” statute. That statute defines as a nuisance a fence unnecessarily exceeding a height of six feet and maliciously erected for purpose of annoying neighbors. This fence exceeded six feet unnecessarily, and clearly resulted from a deteriorating, antagonistic relationship between the Gertzs and their neighbors. The nails on fence protruding between quarter- and one-half inch from the fence and the surveillance cameras clearly supported the finding that the fence was built out of malice, and was therefore a nuisance.

The Gertzs wisely didn’t challenge the trial court’s order that the PA system had to go, too.

Case of the Day – Friday, November 28, 2013

TOO CUTE BY HALF

Just before the Thanksgiving Break, we reported on the 2008 Gertz v. Estes decision, in which the Gertzes were told to remove their 8-foot tall “spite fence.” Why anyone thought that people who built nail-studded fences, peered at their neighbors with an array of surveillance cameras that the NSA would covet, or heckled the Estes family with a PA system, would be impressed with a court order is a good question. You can just hear them through the loudspeaker: “Court order? I don’t need no stinkin’ court order.”

A “spite fence,” after all, isn’t something that one constructs accidentally, or negligently.

You have to intend to harass a neighbor with the fence. And if you set out to harass and oppress, it’s not terribly likely that you’re going to be brought up short by some man or woman in a fancy black robe.

The Gertzes ignored the 2008 court order until the Estes family dragged them back into court. That was when the Gertzes suddenly announced that they had lopped off the top two feet of the fence. Now it was only six feet tall, studded with nails and festooned with more surveillance devices than the Berlin Wall. “Gee,” the Gertzes told the trial court, “now it’s under seven feet – guess it’s not a ‘spite fence’ anymore.”

The Court did what courts do – used procedural rulings to achieve substantive ends. The Court ruled that the Gertzes were trying an “end run” on the prior decision, when they should have raised the reduced height on appeal. Thus, the Gertz motion was thrown out. The Court made clear that the Gertzes’ real problem was that they hadn’t read the 2008 order carefully: it wasn’t the height of the fence alone, it was the intent and the ugliness that made it a “spite fence.” It was still a “spite fence,” albeit it a shorter one. The fence still had to go.

Gertz v. Estes, 922 N.E.2d 135 (Ind.App. 2010). The unsavory neighbor Gertzes had been told to take down the “spite fence” which separated their home from the Estes property. The fence was a doozy, too – while the Gertzes had gotten permission from the town to build a 7-foot tall fence, they had put up an 8-foot fence just a few inches from the property line, studded it with thousands of nails protruding on the Estes side, painted “no trespassing” and “do not climb” notices all over the fence, and equipped the structure with surveillance cameras. There was a PA system, too, which the Gertzes used to make disparaging comments to and about the Estes family on various occasion.

The Berlin Wall – President Reagan could have said, “Mr. Gorbachev – tear down this ‘spite fence’!”

After a bench trial, the trial court found that the “fence was maliciously erected and now maintained for the purpose of annoying the Estes family” based upon the “course of conduct exhibited by Gertze [sic] toward Estes.” Holding that the fence was thus a nuisance, the court ordered the Gertzes to remove it. For good measure, the judge found that the “surveillance of the Estes property and the use of a loudspeaker to harass and annoy Estes constitute[d] an invasion of privacy” and said that all had to go, too.

The Gertzes appealed the trial court’s order, arguing that: (1) the trial court erred by applying the “spite fence” statute to them because they had obtained a local permit for the fence; and (2) the trial court erred by finding that the fence was unnecessary and that the public address system was used to make disparaging comments about the Estes family. The trial court was upheld in Gertz v. Estes, 879 N.E.2d 617 (Ind.Ct.App.2008), and the Indiana Supreme Court denied further review.

On September 12, 2008, the Esteses filed a petition for rule to show cause. The Esteses alleged that the Gertzes had failed to remove the fence, cameras, or public address system and had continued to harass and threaten them. The Gertzes answered by asking the trial court to let them remove the top one foot of the fence rather than the entire fence. The Gertzes said they had already removed the top two feet of the fence, so it was no longer a “spite fence.”

The trial court found that cutting a foot off of the top of the fence didn’t comply with the prior order, because the fence’s height was only one of the factors making it a spite fence. The trial court concluded that the “fence is, and remains, a nuisance.” The Gertses appealed.

Held: The Gertzes’ reduction of the fence’s height didn’t matter: the fence had to go. The Court noted that Indiana Code Section 32-26-10-1, which governs ”spite fences,” provides: “A structure in the nature of a fence unnecessarily exceeding six (6) feet in height, maliciously: (1) erected; or (2) maintained; for the purpose of annoying the owners or occupants of adjoining property, is considered a nuisance.”

The Court held that the Gertzes were just asking for a mulligan. Their petition was really just a motion for relief from the 2008 judgment under Indiana Trial Rule 60(B), and that rule won’t serve as a substitute for a direct appeal. The Gertzes filed a direct appeal of the trial court’s order requiring them to remove the fence. Although the trial court’s remedy of removal of the fence was an issue available to them, they did not raise any argument on appeal about keeping the fence if they only reduced the height.

What’s more, the trial judge’s order that they remove the fence was not based solely upon the height, but instead on a variety of factors. The appellate court held that the Gertzes showed nothing justifying the extraordinary remedy of modification of the trial court’s judgment.

Meanwhile, the Esteses – who had had enough of the expensive litigation – argued that they were entitled to appellate attorney fees because the Gertzes’ appeal was meritless. The court was hesitant to award such fees where the appeal was not “utterly devoid of all plausibility.” The Court said that although “the Gertzes’ brief fails to fully comply with the Appellate Rules and that their argument on appeal fails, we cannot say that their arguments were ‘utterly devoid of all plausibility’.” It refused to order the Gertzes to pay the Esteses’ fees, but cautioned “the Gertzes that future court filings against the Estes family could be considered harassment and result in various sanctions, including but not limited to an award of attorney fees.” The Court “encourage[d] the Gertzes to fully comply with the trial court’s order and protective orders.”

Good luck with that.

Case of the Day – Monday, December 1, 2013

LET’S ALL GET TOGETHER AND STIFF THE INSURANCE COMPANY

Tal Mims owned a rental house. He also owned a landscaping company. So when Rosemary Stills, his tenant, called to say a tree had fallen on the house, who better to come over to clean up the mess that Tal’s landscaping crew? It seemed like perfect synergy.
But things got worse. While the tree was being cut up, a large branch fell on the tenant’s son, breaking his leg. The tenant sued Tal, and then she added his homeowner’s insurance carrier as a defendant. Then both the plaintiff and the defendant Tal ganged up on the insurance company.

The policy pretty plainly excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” But Tal and Rosemary argued that while the falling tree related to the rental property, the accident — which occurred while it was being cut up — did not. Tal Mims argued rather disingenuously that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment.

Here’s the problem, the Court said. While throttling insurance companies is something courts do fairly often, the companies still are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. The business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. Here, the Court said, the property on which the accident occurred was never listed in his homeowner’s policy, but instead happened on another piece of property that should have been covered by its own policy. Besides, the accident happened because Tal was removing a tree from the roof of the rental house. The Court guessed that if Tal had left the tree on the roof, it would have badly affected the value of the house.

That being true, the Court said, this was pretty clearly a project related to a rental property, and pretty clearly excluded from the Tal’s insurance policy, a happy ending for common sense but not so happy for Tal and Rosemary, both of whom hoped State Farm’s deep pocket would solve their problems.

Stills v. Mims, 973 So.2d 118 (La.App., 2007). Stills rented her home from Tal and Tommie Lee Mims. Tal operated a business named Tal’s Custom Landscaping, Inc. When a storm caused a tree to fall on the roof of the home. Stills informed Tal of the damage, and he came to remove the tree. In doing so, a limb fell from the roof onto the ground and injured Stills’ son, LeWilliam. Stills sued Tal and Tommie Lee Mims, and added State Farm as a defendant. She alleged State Farm had in effect at the time of the accident a policy covering the Mims’ actions of the defendants. State Farm filed a motion for summary judgment asserting that the homeowner’s policy issued to Tal Mims was for his personal residence at 2508 Lindholm Street, and that State Farm never issued a policy for 604 Central Avenue, where the accident occurred. State Farm asserted that the liability and medical payments coverages provided in the policy excluded bodily injury and property damage “arising out of the rental or holding for rental of any part of any premises by any insured” and “arising out of premises owned or rented to any insured, which is not an insured location.” The trial court granted summary judgment in favor of State Farm, finding no coverage under Mims’ homeowner’s policy. Both Stills and Mims appealed.

Held: The trial court’s dismissal of State Farm Insurance was upheld. Stills argued that her claim was based on Mims’ negligence in cutting the tree down, and not on any property defect, making the insured location issue irrelevant. Both Stills and Mims asserted that the business pursuit exclusion did not apply, because Mims’ actions fell under the exception for activities ordinarily incident to non-business pursuits.

Mims denied being in the business of renting homes. He claimed that he was acting on his own behalf at the time of the accident and that he was not engaged in any business pursuit or employment. The Court noted that insurance companies are free to limit coverage so long as the limitations do not conflict with statutory provisions or public policy. Exclusions must be strictly construed against the insurer with any ambiguities construed in favor of the insured. The insurer bears the burden of proving the applicability of an exclusion to a claimed loss.

The Court said that the business pursuits exclusion in a homeowner’s policy is intended to exclude risks that should be covered under different policies. For example, the commercial risks of a business would typically be covered by a commercial liability policy, whereas the risks associated with a rental dwelling would typically be insured by rental property insurance. The removal of the risks associated with business enterprises or rental properties helps to lower the rates of homeowner’s insurance by eliminating non-essential coverages.

Stills and Mims argue that her claim does not arise from any business pursuit by Mims, but rather, the claim is based on his personal liability and involves activities that are ordinarily incident to non-business pursuits. They cited Blue Ridge Insurance Co. v. Newman — where the Court found that such a tree mishap was covered by a homeowners’ policy – in support of their position. But the Court said Blue Ridge was different. First, plaintiff Newman’s property on which the tree was located was insured under his homeowner’s policy. Here, the house leased by Stills was not insured under Mims’ State Farm policy. Mims was not seeking coverage for an accident that occurred on his insured residence, but instead, the Court held, he sought to have his homeowner’s insurance cover an incident that occurred on an unrelated rental location that should have been insured by some other policy. The very purpose behind the business pursuits exclusion, the Court said, supported a finding of no coverage.

Second, Newman’s property had been his family’s home since 1965, and had only been rented to a friend for less than a year prior to when the accident occurred. In Mims’ case, there was no indication that the Stills residence was anything other than a rental property.Third, Newman’s house was vacant when the tree fell, whereas Stills and her son were residing in the Central Avenue home when the tree fell on it. Fourth, the damage in Blue Ridge arose when the tree from Newman’s property fell on a neighboring property. Here, the existence of the tree on the property and its falling during the storm did not cause the damage. Instead, young LeWilliam’s injury arose from Mims’ removal of the tree from the roof of the rental dwelling.

Finally, the Blue Ridge court’s major consideration was that the mere existence of the tree on the property had no bearing on the use of the property- as a rental. The fact that a tree fell on the roof of the rental home in this case, particularly if left there, would likely affect the suitability of Stills’ rental dwelling. While the existence, or maintenance, of a tree on Newman’s family property was an activity usually incident to non-business pursuits, Mims’ removal of a fallen tree from the roof of a rental dwelling by Stills was clearly not.

Pretty clever argument, the Court conceded – but State Farm was not liable.

Case of the Day – December 3, 2013

PROGRESS IN FITS AND STARTS

This is hardly the time of the year to ask this, with the fields cut so cleanly that the countryside looks empty. But in many parts of the American Midwest, “corn to the corners” is the rule.

In the Midwest, farmer plant corn to the corners – good yields, but lousy sightlines

By mid-summer, sightlines at crossroads are obstructed by corn, trees or even hedges and shrubs.

We were reminded of this last weekend as we tried to see through a big inflatable polar bear to check for oncoming traffic. My wife wondered aloud whether the people who had festooned their front yard with oversize air-filled Christmas decorations might be liable for collisions resulting from the obscured sightlines.

The Florida Supreme Court has wrestled with this issue, and thrashed around trying to define a standard for the liability of landowners to people not on their property for injury resulting from the conditions of the land.

Up until a few years ago, the Florida high court had adopted a “foreseeable zone of risk” test to determine whether a defendant owed a duty to a plaintiff. That test, simply put, was a judicial determination of whether it was reasonably foreseeable that some adverse condition would create a risk. This is not a ‘proximate cause’ analysis, although the casual reader would be forgiven for thinking it was. Rather, the inquiry in the “foreseeable zone of risk” test was one of a general zone of harm, such as whether overgrown foliage from private land extending over a highway would generally create a foreseeable zone of risk to motorists.

Prior to the “foreseeable zone of risk” test, the Court had employed a rather strict agrarian-era test that pretty much held a landowner blameless for any harm caused by a defect in his or her land. But under the “foreseeable zone of risk” test, the Court had held, for example, that a service station owner whose foliage had grown to obscure ingress and egress to the station was liable for damages resulting from a collision.

Then, in Williams v. Davis, the Court restored the balance. It explained that the service station owner was a commercial business in an urban area, one that specifically relied on the frequent coming and going of motor vehicles. Employing the foreseeable zone of risk analysis made sense. In the Williams case, however, the defendant was a homeowner whose bushy trees and shrubs were contained entirely on her own property. The Court employed the foreseeable zone of risk test, but found it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property.

The Court’s approach isn’t particularly helpful to landowners trying to determine the extent of their duties. The service station owner probably thought he was all right under the old agrarian standard, until his case became the vanguard of the new movement. There was no reason for the defendant in this latest case to feel secure in the wake of the service station decision, but it turns out she was. The same casual reader forgiven above might be excused for wondering whether all this “foreseeable” and “unlikely” business isn’t a lot of judicial lawmaking on a case-by-case “feel” in a rump approach that makes it very difficult for a landowner to know in whose or what zone he or she might be in. Very messy.

And the inflatable polar bear? Thank heavens the Holiday season isn’t that long.

Williams v. Davis, 974 So.2d 1052 (Sup.Ct. Fla., 2007). Twanda Green, an employee of Diamond Transportation Services, Inc., died in an accident while transporting cars in a procession from one rental car location to another. As she made a left-hand turn at the “T” intersection of Pine Street and Sidney Hayes Road, a dump truck ran into her car, killing her.

Her estate sued several defendants, including Beverly Williams, who owned the home and property abutting the intersection. The Estate claimed that foliage on the property obstructed Green’s view of other traffic as she approached the intersection. Williams moved for summary judgment, and the trial court agreed, throwing out the suit against the landowner. While the trial court opinion referred to “overgrown foliage” and “obstructing foliage,” nothing in the record suggested that the Estate was claiming that the foliage actually extended outside the bounds of the Williams’ land or into the right-of-way. The Court of Appeals reversed, holding that Williams owed Green and other motorists a duty of care to maintain the foliage on the property so as not to restrict the visibility of motorists at the intersection. Williams appealed to the Florida Supreme Court.

Held: A private landowner does not have a duty of care to motorists arising from trees or foliage that does not intrude into the right-of-way. The Court applied what is known in Florida as the “foreseeable zone of risk” analysis established in McCain v. Florida Power Corp. A party claiming negligence must show that the landowner owed a “duty, or obligation, recognized by the law, requiring the [landowner] to conform to a certain standard of conduct, for the protection of others against unreasonable risks.” Where a person’s conduct is such that it creates a “foreseeable zone of risk” posing a general threat of harm to others, a legal duty will ordinarily be recognized to ensure that the underlying threatening conduct is carried out reasonably.

The McCain analysis is different from the type of foreseeability required to establish a duty as opposed to that which is required to establish proximate causation. Establishing the existence of a duty requires demonstrating that the activity at issue created a general zone of foreseeable danger of a certain type of harm to others.

By contrast, establishing proximate cause requires a factual showing that the dangerous activity foreseeably caused the specific harm suffered by those claiming injury in the pending legal action. Prior to McCain, Florida courts had followed the common law “agrarian rule” to determine whether a duty exists by landowners to motorists or others passing on a neighboring highway.

Under the agrarian rule, a landowner could never be held liable for harm occurring to motorists on adjacent roadways as a result of natural conditions on the land regardless of any alleged neglect of the landowner. That rule was developed when Florida was largely an agrarian society, and provided that a landowner was essentially immune to claims by persons not on the landowner’s property when injured, even when those persons claimed a condition on the land caused the injury. The rule was also based in part on a distinction between acts of malfeasance and nonfeasance, which reasoned that harm resulting from the mere passive existence of purely natural conditions constituted nonfeasance, whereas harm caused by the active creation of conditions would constitute malfeasance.

More recently, in Whitt v. Silverman, the Supreme Court rejected application of the absolute no-liability agrarian rule in considering whether a commercial landowner in an urban setting owed a duty to motorists and pedestrians who might be harmed by conditions on the property. Instead, it applied the “zone of risk” foreseeability analysis articulated in McCain, and concluded that under that holding, the landowners’ conduct created a foreseeable zone of risk posing a general threat of harm toward the patrons of the business as well as those pedestrians and motorists using the abutting streets and sidewalks. The decision stood for the proposition that a business may be held liable to pedestrian passers-by by reason of the failure of the business to provide safe egress to vehicles exiting the premises. But for McCain, there are no Florida decisions imposing liability upon a property owner based on natural conditions contained wholly within the boundary of the private property.

The Court recognized in this case that ordinarily a private residential landowner should be held accountable under the zone of risk analysis principles of McCain only when it can be determined that the landowner has permitted conditions on the land to extend into the public right-of-way so as to create a foreseeable hazard to traffic on the adjacent streets. Applying that test in this case, the Court saw little basis for imposing liability on the owner of a wooded residential lot for letting the property remain in its natural condition, as long as the growth did not extend beyond the property’s boundaries. Unlike the situation in Whitt, wherein it concluded that it should be foreseeable to the operator of a commercial service station that obstructions to the vision of an exiting motorist could constitute a danger to adjacent pedestrians, the Court found it unlikely that a residential landowner would foresee that adjacent motorists would be endangered by the mere presence of foliage on the property.

The Court said that while all property owners must remain alert to the potential that conditions on their land could have an adverse impact on adjacent motorists or others, it was not convinced the existing rules of liability established by our case law that distinguish conditions having an extra-territorial effect from those limited to the property’s boundaries should be abandoned. Furthermore, motorists in Florida have a continuing duty to use reasonable care on the roadways to avoid accidents and injury to themselves or others. That duty, the Court said, includes a responsibility to enter intersections only upon a determination that it is safe to do so under prevailing conditions.

Case of the Day – December 4, 2013

FLASHBACK: FLORIDA SOWS CONFUSION

Apropos of yesterday — when we considered the results of the Florida Supreme Court’s latest wrestling match with its slick and technical “foreseeable zone of risk” standard — we look today at the modern-day origin of the standard.

“Foreseeable zone of risk” does sound so very modern and pseudo-scientific. No more pesky absolutes, like the “agrarian rule” the Court sneers at as so … well, as so “old school.” No more of that 19th century nonsense. After all, other than providing certainty that enabled landowners to obtain insurance at reasonable rates, that created a willingness by landowners to take risks that helped fuel economic development, and that enabled Florida’s citizens to understand simple rules governing their conduct, what good has the “agrarian rule” done?

Instead, the Court gets to set the pendulum swinging, and then try to force its return. Consider our poor service station operator: Eli Silverman had a gas station in Miami Beach with lush, beautiful foliage. He had probably checked with his lawyer, who had careful researched Florida law and told him, “Hey, don’t worry about that crazy McCain v Florida Power ‘foreseeable risk of harm’ analysis. I checked, and Florida courts have always held that you as a landowner can’t be liable to someone not on your property because of its natural condition.”

But it turned out that poor old Mr. Silverman (and his lawyer, no doubt) were unfortunate beachwalkers when the tsunami of “foreseeable zone of risk” hit the Florida shore. Mrs. Palsgraf? The Court tried to parse it, pointing out that after all, Mr. Silverman knew that people were driving in and out of his place. In fact, his livelihood depended on it.

But, like the old preacher used to warn, “sow the wind, reap the whirlwind.” One of the dissenting judges in the Silverman decision was “concerned about the extensive exposure to liability which this decision will now cast upon all real property owners, including homeowners. This issue is further complicated by the necessity of apportionment [of damages] which will now be involved in many more automobile cases.” He was right, for sure. The Whitt v. Silverman case directly led to the Florida Supreme Court’s decision in Williams v. Davis.

And now we understand the difference. If you as a landowner expect cars to enter onto or off of your property, you may be putting pedestrians within a “foreseeable zone of risk.” The natural condition of your property, even lush foliage that doesn’t extend beyond your yard, could give rise to a duty to people who never enter on your land. On the other hand, if you don’t expect cars entering your property, you’re off the hook.

What nonsense! No one wins in the labyrinthine application of the “foreseeable zone of risk” analysis to this kind of condition.

Whitt v. Silverman, 788 So.2d 210 (Sup.Ct. Fla. 2001) (later limited by Williams v. Davis, Nov. 21, 2007). Silverman operated an Amoco service station on Collins Avenue in Miami Beach. While leaving the service station in her car, service station customer Jean Simoneau ran down two pedestrians, killing one and injuring the other. The deceased walkers’ estates sued Silverman, among others, claiming that he had a dense stand of foliage between the service station and the adjacent property that impaired the driver’s view of the sidewalk, thus contributing to the accident. The foliage was entirely on the landowner’s property and did not protrude into the public way. The trial court dismissed the estates’ claims for negligence. The Court of Appeals affirmed the dismissal of the common law negligence claim, acknowledging the McCain v Fla. Power Co. “foreseeable zone of risk” decision but holding that McCain did not apply. The Court instead relied upon the “agrarian rule,” which provided that a landowner has a right to use and enjoy his property in any manner he sees fit. The estates appealed to the Florida Supreme Court.

Held: The foreseeability zone of risk analysis adopted in McCain applied in determining whether Silverman was negligent, and applying that standard, Silverman was found to owe the pedestrians a duty of care which he breached, even if the foliage was a natural condition entirely on his property. The Court observed that the old “agrarian rule” provided that a landowner owed no duty to people who weren’t on the landowner’s property, and therefore a landowner is not responsible for any harm caused to them by natural conditions on the land. But the McCain decision invalidated that rule, instead focusing on the “duty” element of negligence. The question is whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. The Supreme Court explained that this “Foreseeable zone of risk” analysis was somehow different from the proximate causation element of negligence. “Proximate causation” is concerned with whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred. A defendant might be under a legal duty of care to a specific plaintiff, the Court explained, but still not be liable for negligence because proximate causation cannot be proven. The Court said that foreseeability is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions.

The Court rather expansively held that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses. Duty exists as a matter of law and is not a factual question for the jury to decide. Rather, duty is the standard of conduct given to the jury for gauging the defendant’s factual conduct. The imposition of a duty is nothing more than a threshold requirement that, if satisfied, opens the courthouse doors. Once this duty is satisfied, an injured party must still prove the remaining elements of a negligence claim, including the much more specific proximate cause requirement.

In this case, the conditions on Silverman’s property resulting in injuries or damages to the pedestrians off the landowner’s premises should be evaluated by the established principles of negligence law, even if the conditions on the landowner’s property are natural ones, such as foliage. The Court concluded that Silverman owed a duty of care to pedestrians who were injured on adjacent property when they were struck by a motorist whose vision upon departing the station was obscured by foliage on station’s premises. Silverman’s conduct in permitting the foliage to grow created a foreseeable zone of risk. By its very nature, the station depended on a continuous flow of traffic entering and exiting the premises for Silverman’s commercial benefit. He had exclusive control over the foliage and landscaping it wouldn’t have been unduly burdensome for him to have maintained the foliage consistent with the safe egress and ingress of vehicles attracted to business and persons affected thereby. The Court said that the imposition of the duty of care on Silverman, the Court said, did not relieve motorists using adjoining roadways of a duty. Even if the landowner breaches the duty of care, a plaintiff’s award will be offset by the percentage of fault attributable to him in comparison to the fault of others, including the landowner.

Case of the Day – December 5, 2013

HERE, LET ME FIX THAT

Residential developments often have restrictions in deeds, or just merely homeowners’ association rules, prohibiting different colors of house paint, refusing clotheslines and outbuildings, and even banning trees that block a neighbors’ view. And yet people buy houses in the developments, too excited at closing to pay a lot of attention to yet another page of legalese buried in a mountain of legalese. When – several years later – those restrictions get in the way of their whims, the unhappy parties blame everyone but themselves.

That happened to Gail Andrews, who bought a place at beautiful Sandpiper Village in Waldport, Oregon. These places aren’t cheap, but the ocean view makes them quite desirable. Ms. Andrews lived harmoniously with her neighbors for several years, until a nearby homeowner asked her to trim her trees because they were blocking his view of the ocean. Ms. Andrews ignored his request. Not to be denied, the neighbor had the local homeowners association ask her to trim them. She didn’t ignore the homeowners association. Instead, she sued them, and her lawyer found a hook.

The restrictions on trees had been modified in 1993, a few years before she moved in. But then a year later, the association’s lawyer, trying to be helpful, decided to rewrite things a little. He added the phrase “designated ocean view lot” to the restriction, so it read “no trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” You know, he was just trying to be helpful, to make it a little clearer. Only problem was that there was no such thing as a “designated ocean view lot.” Ms. Andrews glommed onto the new language, claiming she didn’t have to trim her trees because her neighbor’s lot wasn’t a “designated ocean view lot.” In the alternative, she said the whole restriction was void because the homeowners had never passed on the “designated ocean view lot” language.

The Court concluded that the evidence showed that the association’s lawyer never intended his rewrite the change the restriction that the homeowners had approved. Besides, Ms. Andrews had a chance to read all of the rules before she moved in. Her excuse was that some unnamed person who had been attached to the homeowners association had once told her that her neighbor’s place was not a “designated ocean view lot.” Kind of short on corroborative facts, Ms. Andrews, aren’t we? The Court thought so. Without revealing who and when the conversation occurred, Ms. Andrews was unconvincing.

There’s a lesson here for the helpful lawyer. If the restriction was too confusing as it was passed — and there’s no evidence it was — he should have asked the homeowners to vote on the new one. Being a lawyer, he should have foreseen that problems with the restriction wouldn’t arise from good faith confusion as much as bad-faith avoidance, and the non-trimmer would hire a mouthpiece who would try to drive a chainsaw through his “helpful” re-write. And why would anyone use gobbledygook like “designated ocean view lot” when there was no procedure for designating lots in the first place? The lawyer’s helpful “fix” just created a mess and cost his client a lot of money. The unanswered question is whether his client punched him in the kisser and fired him, or just fired him without fisticuffs. It would be a close call.

Andrews v. Sandpiper Villagers, Inc., 170 P.3d 1098 (Or.App., 2007). Sandpiper Villagers, Inc., was the local association of homeowners in Sandpiper Village, a coastal subdivision. When the subdivision was built in 1968, the developer recorded a declaration of covenants and restrictions prohibiting trees, hedges, shrubbery, plantings or fencing over 6 feet tall. The restrictions were to remain in effect for 25 years, during which they could be amended by vote of the lot owners. In 1993, the association adopted an amended declaration providing that no trees, hedges, shrubbery, plantings or fencing of any kind would be allowed to obstruct the ocean view without written approval of the board. The next year, the association’s legal counsel drafted what he termed to be a “stylistic” change to the restriction, one that was not voted on by the homeowners. Following his change, the provision held that no “trees, hedges, shrubbery, plantings, or fencing shall obstruct the view of the ocean from designated ocean view lots without the written approval of the board.” Another provision stated “[i]f a provision is subject to more than one reasonable interpretation, any reasonable interpretation adopted by [the board] shall control.”

Andrews bought a lot in Sandpiper Village in 1997, after reviewing the 1994 restrictions as part of her title report. Six years later, another member of the association sent a written notice to Andrews asking her to trim trees on her property in order to preserve his view. She did not. When the ARC asked in writing that she do so, she sued, asking a ruling from the court that the association had no authority to require her to trim the trees because there was no documentation or other evidence showing that her neighbor’s property was a “designated [ocean] view lot.” She also asked that the restrictions be declared void as contrary to state statutes.

The Association moved for summary judgment, arguing that because the phrase “designated ocean view lots” was drafted as a stylistic change and never voted on by the homeowners, it should be disregarded. Without that phrase, the Association argued, the 1994 restrictions had the same effect as the 1993 restrictions. Alternatively, the Association said that, even assuming that phrase is a valid part of the 1994 restrictions, the phrase was ambiguous and the court either should defer to the ARC’s interpretation or determine – based on extrinsic evidence – that it was not intended to effect a substantive change to the 1993 restrictions under which all lots were entitled to view protection. The trial court awarded summary judgment in favor of the Association. Andrews appealed.

Held: The Court of Appeals upheld the judgment for the Association. If a text’s meaning is unambiguous, the Court said, courts decide the meaning of contractual provisions as a matter of law. If disputed contractual provisions are ambiguous, however, courts proceed to examine extrinsic evidence of the contracting parties’ intent, including, if helpful, evidence regarding the parties’ practical construction of an agreement.

Here, the phrase “designated ocean view lots” in the restrictions was unambiguous, referring to those lots that, as a matter of observable fact, had a view of the ocean. Plus, extrinsic evidence supported the Association’s claim that the regulations were unchanged from those approved by the homeowners. The Association’s lawyer’s contemporaneous communications indicated that his revised section of the regulations was intended to have the same substantive effect as section of regulations which, by its terms, did not restrict the protection of ocean views to any particular ocean view lots, such as those that someone had previously “designated” as having an ocean view.

Andrews argued that a prior chairman of the ARC assured her that her neighbor’s lot was not a “designated ocean view lot,” but the Court said that wasn’t a sufficient claim to create a factual dispute about the meaning of the restrictions. Andrews’ affidavit did not state whether the prior chairman was the chairman of the committee at the time she made the statement or, alternatively, at the time that the regulations were adopted.

Case of the Day – December 6, 2013

THE BLUNDERING HERD

This is the week for lawyers goofing up. Yesterday, our well-meaning homeowners association lawyer redrafted restrictions to make them more readable, and confusion (but no hilarity) ensued. Today, the mistake was made by the professionals in the Massachusetts Land Court way back in the 1940s. Two lots located next to each other, a power line easement granted way back in antiquity that didn’t describe the corridor of the easement at all, and … well, like a sophomoric sitcom, you can see where this is heading. When the Land Court issued certificates of title (a Massachusetts thing) it recorded the easement on Lot 2. The problem is that the power lines went across Lot 1.

No one really notices power line poles – they’re just there. So it’s no surprise that nobody noticed the blunder until the neighbor on Lot 2 wanted to increase the size of his electrical service. The power company needed to install a transformer, and as a matter of course, it checked to verify its easement. Lo and behold, it found that the easement had been recorded on the wrong land. “No probalo,” the power company said, and it sued Leslie MacCardell — on whose land the power lines were located — to have the easement sort of eased on over to Leslie’s lot.

Not so fast, Leslie exclaimed. She fought back, arguing that she was a purchaser in good faith, and nothing in the records she had searched when she bought the place revealed a power company easement. “Good faith, indeed!” hooted the power company. She had actual knowledge of the easement when she bought. After all, the poles were there and her lights turned on (yeah, the utility actually said this) and she got a bill. How’d she think all of that happened if not for an easement?

Well, said Massachusetts highest court, in any of several ways. Despite the power company’s rather arrogant suggestion that it was just inconceivable that it would not have a proper easement, the Court said the poles could have been there permissively, or maybe — as it turned out — it was nothing but a trespass. Whatever it was, the Court held, it wouldn’t just assume that a landowner had actual knowledge. Rather, it was up to the power company to prove she did. And it didn’t.

We’re guessing this is kind of a Pyrrhic victory for our plucky heroine. Clearly, the power company’s poles had been on her property, openly and notoriously and continuously and adversely for many years. The utility probably had an open and shut case for a prescriptive easement, and it seems curious that it didn’t plead that as an alternate cause of action.

Commonwealth Elec. Co. v. MacCardell, 450 Mass. 48, 876 N.E.2d 405 (Sup.Jud.Ct. Mass. 2007). Thomas Murray owned two parcels of land. He granted an easement to the electric company for installation of transmission lines. The easement didn’t provide compass directions, but instead mentioned that the land was located in Duxbury and that the pole lines could “enter from land now or formerly of Plum Hill Avenue and cross to land now or formerly of Chester L. Churchill.” In 1944, the Murray estate filed an action in the Land Court to register and confirm the title to the two parcels. Both the certificate of title and the Land Court decree of registration mistakenly said that Lot 2 was subject to the pole easements when in fact was Lot 1. MacCardell owns Lot 1, the lot that contains the actual poles (which supply electricity to both her place and the adjacent property). Neither MacCardell’s title nor the next-door neighbor’s title mentions the utility easement. When her neighbor asked for increased electrical service, the power company decided it had to install a transformer.

During its routine check on its easement, the utility found that there was an easement on Lot 2 but no easement on for Lot 1. The utility petitioned the Land Court to amend MacCardell’s title for Lot 1 to include the easement. MacCardell argued that in 1944 the Court’s decree imposed the easement on Lot 2, not Lot 1. She claimed she purchased a title with no encumbrances, and allowing the electric company to amend her title would impair her property. The Land Court entered judgment in favor of MacCardell. The utility appealed, but the Appeals Court affirmed the Land Court’s judgment. Thereafter, the electric company appealed to Massachusetts’ highest court.

Held: MacCardell owned her land free of the easement. Massachusetts law is settled that title holders and subsequent purchasers of registered land for value and in good faith take “free from all encumbrances except those noted on the certificate.” With respect to easements, the general rule is that in order to affect registered land as the servient estate, an easement must appear on the certificate of title. There are two exceptions to the general rule: (1) if there were facts described on the certificate of title that would prompt a reasonable purchaser to investigate further other certificates of title, documents, or plans in the registration system; or (2) if the purchaser had actual knowledge of a prior unregistered interest. In this case, no one disputed that the easement was not recorded anywhere in MacCardell’s chain of title. However, the utility argued that she had actual knowledge of the easement.

The “actual knowledge” exception means that for a titleholder to benefit from the protections afforded by the land registration system, the title holder must not possess actual knowledge of unregistered easements. The burden of proof lies with the party seeking to encumber an owner’s registered land, in this case, the electric company. Unfortunately for the utility, the Court said, it had presented no proof that MacCardell had actual knowledge of the easement. All it argued was she had utility poles on her property, she could turn her lights on every morning, and she received a monthly utility bill. All of that proved she had knowledge, the utility claimed, because it was “inconceivable that a utility company’s installation and use of poles” would ever be permissive rather than a claim of right. The Court rejected this, suggesting that the poles, the power and the bill might equally suggest that the use may be adverse, which does not create an easement under the law, or a registered owner might have granted permissive use. What’s more, the Court said, the mere presence of a utility pole didn’t automatically place a registered landowner on notice that her property might be encumbered, because the actual owner of a utility pole isn’t readily ascertainable, and the average person may be unaware of the exact boundaries of the land. To meet the actual knowledge exception, the Court held, there must be some intelligible oral or written information that indicates the existence of an encumbrance or prior unregistered interest.

Case of the Day – Monday, December 9, 2013

CHUTZPAH, CONNECTICUT STYLE

So you like your wild mountain property, with its clean, sparkling streams and majestic trees? You like to think that it will always look as pristine and undeveloped as it does right now. So when you finally sell it, you place some restrictions on the deed, so that there won’t be any double-wide trailers, pre-fab A-frame chalets or tar paper shanties. Seems reasonable, doesn’t it? But eventually the people you sold the land to sell it to someone else, and the someone else has a really good lawyer. “This is Connecticut!” the solicitor tells his client. “We can beat this restriction!”

And lo and behold, that’s just what he does. It seems in Co nnecticut, the terms on which you were originally willing to sell your land don’t much matter. In today’s case, the heirs of the original nature-lovin’ owner suffered a lot of angst when they finally sold off most of the lake property. But the buyer won them over, even agreeing to a development restriction on part of the land, in order to preserve its natural character. A few years later, that buyer sold the land to the Williams, who had been convinced by their lawyer that the restriction wasn’t enforceable. The new owners promptly sued for a declaratory judgment that the restriction was void.

The Connecticut court agreed that it was. It fell outside of the three traditional categories of restrictions that ran with the land. Even so, the Court said, it could be enforced under equitable principles. But it wouldn’t do that, the Court said, because it would be so unfair to the buyers of the land. After all, the Court said, it wasn’t clear who the beneficiary of the restriction was or who could enforce it. Therefore, the Court held it would be unfair to the buyers because — and we’re not making this up — they “bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary is not reasonable.”

The decision certainly turns common sense on its head. Where a seller is unwilling to sell unless a restriction is placed on the land, it’s hard to argue that the continuing restriction harms marketability. It’s more marketable than if the seller doesn’t sell at all. And for that matter, should it be the law’s business to promote marketability over a seller’s free will?

It seems safe to imagine that as conservation — and especially forest preservation because of “climate change” concerns — is of increased public policy importance, the notion of “marketability” and the free right to develop may become less of a holy grail. As it probably should.

Williams v. Almquist, 2007 WL 3380299 (Conn. Super., Oct. 30, 2007) (unreported). Robert Bonynge bought a 150-acre tract of land at Lake Waramaug in 1898, which he later conveyed away in several parcels. Although some of the original tract was sold in the 1930s, and some of the heirs owned certain parcels outright, a 105-acre tract was eventually sold to Lee and Cynthia Vance by the Bonynge heirs in 2001. The negotiations for that sale were a difficult and emotional process, with the primary concern of the heirs to conserve the natural condition of the property. The Vances agreed to give some of the land and a conservation easement to the Weantinoge Heritage Land Trust. Also, they agreed a restriction on 8.9 acres of the property: “There shall be no construction or placing of any residential or commercial buildings upon this property provided that non-residential structures of less than 400 square feet may be constructed for recreational or other non-residential purposes and further provided that the property may be used for passive activities such as the installation of septic and water installations, the construction of tennis courts, swimming pools and the construction of facilities for other recreational uses.”

The sellers were disinclined to see their paradise turned into a trailer park.

David and Kelly Williams bought part of the 8.9-acre tract in 2005 from the Vances, still still subject to the restriction agreed upon in February 2002. Shortly thereafter, the Williams entered into an agreement with the Vances in which the Vances waived their right to enforce the restriction. The Williams then sued for declaratory judgment against the Bonynge heirs, asking the court to declare the restriction in their deed void and unenforceable.

Held: The restriction on the Williams’ land is unenforceable. The Court noted that restrictive covenants generally fall into one of three categories: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for his benefit and protection of his adjoining land which he retains. Here, the restrictive covenant did not fall under the first category because it originally arose from the sale of the Bonynge heirs’ land to the Vances, not from an exchange of covenants between adjoining landowners. Likewise, the second category did not apply. Rather, that category applies under a general developmental scheme, where the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee. But in this case, the Court ruled, the evidence suggested that a common plan or scheme did not exist.

The restrictive covenant did not fall under the third category either. Where the owner of two adjacent parcels conveys one with a restrictive covenant and retains the other, whether the grantor’s successor in title can enforce, or release, the covenant depends on whether the covenant was made for the benefit of the land retained by the grantor in the deed containing the covenant, and the answer to that question is to be sought in the intention of the parties to the covenant expressed therein, read in light of the circumstances attending the transaction and the object of the grant. The question of intent is determined pursuant to the broader principle that a right to enforce a restriction of this kind will not be inferred to be personal when it can fairly be construed to be appurtenant to the land, and that it will generally be construed to have been intended for the benefit of the land, since in most cases it could obviously have no other purpose, the benefit to the grantor being usually a benefit to him as owner of the land, and that, if the adjoining land retained by the grantor is benefitted by the restriction, it will be presumed that it was so intended. Here, three of the Bonynge heirs retained property near the 105-acre tract, but did not own property directly adjoining or overlooking the restricted tract. As such, the Court said, there was no presumption that the restriction was meant to benefit their land. The deed didn’t say as much: in fact, the deed didn’t indicate that the restriction was meant to benefit anyone at all. With no mention of beneficiaries in the deed and no testimony regarding the intent of the retaining landowners, the Court held, the restriction could not fall under the third category.

The trial court said it could properly consider equitable principles in rendering its judgment, consistent with Connecticut’s position favoring liberal construction of the declaratory judgment statute in order to effectuate its sound social purpose.

Some might argue that maintaining the forest as a carbon sink was a worthwhile social purpose

Although courts before have approved restrictive covenants where they benefited a discernable third party, the Court here found that the restriction was not reasonable because it had no clear beneficiary and limited the marketability of the property. The possible beneficiaries were the Bonynge heirs, only those heirs who retained property in the Lake Waramaug area, the other residents in the Lake Waramaug area, the Vances, or simply nature itself. Without a discernable beneficiary, the Court ruled, it was difficult to determine who could enforce the restriction and for how long.

The restriction also unreasonably limited the marketability of the property. Although restrictions are often disfavored by the law and limited in their implication, restrictive covenants arose in equity as a means to protect the value of property. Here, no identifiable property was being protected by the restriction. The plaintiffs bought the property because they thought the restriction was unenforceable. If the restriction is found enforceable, the property could only be developed for recreational purposes and would be far less valuable. Devaluing property without a clear beneficiary, the Court said, was not reasonable.

Case of the Day – Tuesday, December 10, 2013

ALL FOR ONE AND ONE FOR ALL

Christmas at the Halcumb family homestead must have been mighty chilly after sister Patsy sued her brother Ken for a hundred grand in cut timber.

A mind isn’t the only terrible thing to waste, as young Kenny Halcumb would soon discover

Ken lived on land pursuant to a life estate, with Patsy holding the reversionary interest. Ken and his buddy Troy Denton decided to harvest the timber and sell it, thereby committing “waste” on the property. Sister Patsy sued brother Ken and collected $32,000. Only half a loaf, it turns out – Patsy had demanded treble damages under Arkansas’ wrongful cutting law – a statute similar to one in many states, which punishes wrongful taking of timber by tripling the damages to be paid by the wrongdoer. The trial court had denied treble damages, much to Patsy’s dismay.

She didn’t bother to appeal. Instead, right after Ken paid her off, she turned around and sued Troy, asking for the treble damages. Troy asked the trial court to dismiss the claim under the doctrine of res judicata, literally meaning “the thing has been adjudicated.” Patsy tried the novel argument that because her brother had the right to get contribution from Denton for the money he had to cough up to big Sis, she had the right to sue him as well. After all, Troy was a joint tortfeasor.

But that begged the question. If her brother wasn’t liable for the treble damages, his partner-in-tort hardly could be. And that was the problem. Patsy had had a fair shot at the tree harvesters in the first trial. The law guarantees everyone that one fair shot, but not two. Where the second case is based on the same events as the first, the Court said, it is precluded by res judi.

Good advice for Patsy?

That just makes good sense — both from the standpoint of judicial economy and everyone’s interest in seeing litigation have some reasonable and final endpoint.

White v. Denton, Not Reported in S.W.3d, 2007 WL 4181557 (Ark.App., Nov. 28, 2007). Patsy White owned timberland in Polk County, subject to a life estate in the property held by her brother, Ken Halcumb. In the summer of 2004, Halcumb contracted with Denton to cut and remove timber from the property. White sued her brother for conversion of the timber and for damage to the property, alleging the land sustained damage in excess of $100,000 plus more than $25,000 in cleanup and replanting costs. She asked for treble damages for the value of the converted timber.

White won a $31,202.80 judgment in 2005. In that judgment, the trial court denied White’s prayer for treble damages, finding that Arkansas law on treble damages for wrongful cutting of timber did not apply. The Court also refused to award damages for clean up or replanting of the timber. She did not appeal, and her brother paid. A month later, she sued Denton for trespass and conversion of her timber, again asking for treble damages. Denton asked for summary judgment, asserting that White’s complaint was barred by the doctrine of res judicata, having been by the judgment she got against her brother. The trial court agreed and dismissed White’s complaint. While appealed.

The Three Musketeers – “All for one and one for all?” Or joint tortfeasors?

Held: Denton is off the hook. White argued that the recovery of a judgment against one joint tortfeasor did not discharge the other joint tortfeasor. She said that Denton acted “jointly” with her brother to commit the torts of trespass and conversion of her timber, but contended that Denton is “independently liable” for those acts. She argued that her cause of action against Denton is not barred by res judicata because she hadn’t had a full opportunity to pursue Denton as a joint tortfeasor. She acknowledged that she received in damages the same amount of money that Halcumb sought to collect from the timber, but she contended that the judgment did not include the remaining damages that she claimed.

The Court said that the term “res judicata” encompassed both issue and claim-preclusion. When a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. The key question regarding the application of res judicata is whether the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question. While state law established a common policy for loss distribution among joint tortfeasors, it didn’t give a plaintiff the right to sue each of multiple tortfeasors individually for the same damages. The Court noted that White recovered a judgment for the very claims that she subsequently attempted to assert against Denton. If she was unsatisfied with the amount of the judgment, the Court said, her remedy was appeal, not a new suit against someone she could have included in the first action.

Here, the Court held, White’s suit against Denton arose from the same wrongful cutting of her timber and the damages that she sought were identical. While she arguably asserted a somewhat different legal theory, negligence, as a basis for imposing liability against Denton, however, that fact made no difference.

In this case, one neighbor mistakenly planted trees entirely on the property of his neighbor, at least by a few inches. You know what happens when trees grow. These grew so they stood astride the boundary line of the properties.

At least that’s where they stood until the neighbor cut them down. The Rhodigs claimed the trees that grew on both properties were owned as tenants in common. This was important, because the traditional rule was that trees straddling a boundary belonged to both parties as tenants in common. Neither party could cut down the trees without the consent of the other. The Supreme Court of Colorado held that whether the trees grew on the boundary wasn’t as important as what had been the agreement between the parties when the trees were planted. There has to be meeting of the minds as to the planting, the care, or even the purpose of the trees, the Court said, because without an agreement, one party cannot have an ownership interest in something affixed to someone else’s land.

A spirited dissent argued the tradition English rule — that held that trees straddling a boundary belonged to both parties as tenants in common — makes more sense. Certainly, it saves a lot of judicial hair-splitting as to agreements and courses of dealing between two neighbors who were now in court.

The problem seems to be that boundary trees, once planted, seldom stay small

When the Rhodigs purchased their property, there were two trees standing near the lot line. In 1943 Rhodig planted two more trees in a line with the first two. Later one of the original trees died and the Rhodigs replaced it. In 1962 Keck, wishing to fence his property to the south of Rhodigs, had a survey made of the lot line. This showed that one tree was entirely inside Keck’s property by three inches; a second tree, 18 inches in diameter, extended four inches onto Rhodigs’ land and was 14 inches on Keck’s lot; a third tree, eight inches in diameter, extended two inches onto Rhodigs’ land and was six inches on Keck’s lot; the fourth tree, which was 16 inches in diameter, was growing five inches on Rhodigs’ land and 11 inches on Keck’s lot. As a result of the survey, Keck removed the trees. Incidentally, the Rhodigs had done their own survey 10 years earlier, and their findings matched those of Mr. Keck. In fact, they had tried to buy a strip of land with the trees from Mr. Keck without success.

The trial court granted Keck’s motion to dismiss at the close of plaintiffs’ case, finding that the Rhodigs had failed to establish that they were owners of the trees. The Rhodigs appealed.

Held: The Court held that the Rhodigs’ contention that they and Keck were tenants in common of the trees did not hold. It said “the trees in question, when planted, must necessarily have been wholly upon Keck’s property and no agreement or consent was shown concerning ownership. The mere fact that the Rhodigs testified that they owned the trees and maintained them is not sufficient evidence to permit a recovery. This is so because they could not own something affixed to Keck’s land without some agreement, right, estoppel or waiver. Apparently a test in determining whether trees are boundary line subjects entitled to protection is whether they were planted jointly, or jointly cared for, or were treated as a partition between adjoining properties. In the instant case none of these attributes was proved by the plaintiffs.”

The Court held that one of the trees — being wholly on Keck’s land — was not involved in the dispute at all. As to the other three trees, the Court said, the Rhodigs had failed to prove a legal or equitable interest in them, meaning that the legal owner of the land — Mr. Keck — had the right to remove the encroachment.

The judgment was affirmed.

Two of the justices dissented, arguing that the majority of the Court had sanctioned conduct on the part of Mr. Keck which constituted a trespass and the destruction of co-owned property. Citing early English common law holding that (1) a tree which stood on a property line made the adjoining owners tenants in common of that tree, and (2) if one of the co-owners cut the whole he was liable for damages to the other, the dissenters argued that the Rhodig trees should come within that well-established rule. “To come within these rules a tree need not have been placed on the property line for the purpose of forming a border or boundary,” the dissenting justices said. “A tree which stands on a property line in a state of nature or one which has been planted by man is treated in the same way.”

Case of the Day – Thursday, December 12, 2013

ALL YOUR TREE ARE BELONG TO US

If you were not following Internet culture (as oxymoronic as that phrase may be) back in 2001, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing. But it became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some corners of the ‘Net to this day.

In today’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!” But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. The base of the tree straddled the property line. Unlike the Colorado decision of Rhodig v. Keck, the Illinois court did not require showings as to who had planted or cared for the tree. Instead, its analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners tenants in common, and prohibited either from damaging the tree without permission of the other.

The Illinois view, which is the more common approach that Colorado’s “husbandry” test, is the prevailing view in the United States. In this case, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree. For great justice.

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988). The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

The evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had protectable interest even though greater portion of trunk lied on the adjoining landowners’ side of boundary. That interest makes the two landowners tenants in common, and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

BOUNDARY TREES

Questions sometimes arise about the ownership of and responsibility for boundary trees, trees that grow on or near the boundary line between adjacent properties. Who has the legal right and responsibility for the removal or care of such trees? As is the case with so much in the law, that depends …

Very generally – and we can’t stress enough the general, non state-specific nature of the following – the following principle apply:

• If the trunk of the tree is located entirely on one owner’s land (even if limbs overhang or root systems protrude into a neighbor’s land), the person on whose land the trunk is located owns the tree and has the absolute right to either keep it or completely remove it. This is true even where the tree may provide shade, enjoyment, or value to the folks next door.

• If the trunk is located entirely on one owner’s land, an adjoining owner has no right to remove or destroy the tree even if it causes personal inconvenience, discomfort, or damage. However, if the branches extend overhang or if the tree sheds debris onto the neighbor’s land, other rules apply. See the Massachusetts Rule, the Hawaii Rule or the Virginia Rule.

• If the tree is located such that its part of its trunk is on both properties (even if nearly all the trunk may be on one side), the law generally considers the tree the “common property” of both landowners. In this event neither owner has the right to remove or injure the tree without the other’s consent. Even minor trimming should not occur until communication occurs between the owners.

THE COLORADO APPROACH

Ah, but don’t start singing “We are the World” just yet. There are exceptions … there’re always exceptions.

Take Colorado, for example. In that state’s leading case on the subject, one neighbor mistakenly planted trees entirely on the property of his neighbor, at least by a few inches. You know what happens when trees grow. These grew so they stood astride the boundary line of the properties.

At least that’s where they stood until the neighbor cut them down. The Rhodigs claimed the trees that grew on both properties were owned as tenants in common. This was important, because the traditional rule was that trees straddling a boundary belonged to both parties as tenants in common. Neither party could cut down the trees without the consent of the other. The Supreme Court of Colorado held that whether the trees grew on the boundary wasn’t as important as what had been the agreement between the parties when the trees were planted. There has to be meeting of the minds as to the planting, the care, or even the purpose of the trees, the Court said, because without an agreement, one party cannot have an ownership interest in something affixed to someone else’s land.

A spirited dissent argued the tradition English rule — that held that trees straddling a boundary belonged to both parties as tenants in common — makes more sense. Certainly, it saves a lot of judicial hair-splitting as to agreements and courses of dealing between two neighbors who were now in court.

The problem seems to be that boundary trees, once planted, seldom stay small

When the Rhodigs purchased their property, there were two trees standing near the lot line. In 1943 Rhodig planted two more trees in a line with the first two. Later one of the original trees died and the Rhodigs replaced it. In 1962 Keck, wishing to fence his property to the south of Rhodigs, had a survey made of the lot line. This showed that one tree was entirely inside Keck’s property by three inches; a second tree, 18 inches in diameter, extended four inches onto Rhodigs’ land and was 14 inches on Keck’s lot; a third tree, eight inches in diameter, extended two inches onto Rhodigs’ land and was six inches on Keck’s lot; the fourth tree, which was 16 inches in diameter, was growing five inches on Rhodigs’ land and 11 inches on Keck’s lot. As a result of the survey, Keck removed the trees. Incidentally, the Rhodigs had done their own survey 10 years earlier, and their findings matched those of Mr. Keck. In fact, they had tried to buy a strip of land with the trees from Mr. Keck without success.

The trial court granted Keck’s motion to dismiss at the close of plaintiffs’ case, finding that the Rhodigs had failed to establish that they were owners of the trees. The Rhodigs appealed.

Held: The Court held that the Rhodigs’ contention that they and Keck were tenants in common of the trees did not hold. It said “the trees in question, when planted, must necessarily have been wholly upon Keck’s property and no agreement or consent was shown concerning ownership. The mere fact that the Rhodigs testified that they owned the trees and maintained them is not sufficient evidence to permit a recovery. This is so because they could not own something affixed to Keck’s land without some agreement, right, estoppel or waiver. Apparently a test in determining whether trees are boundary line subjects entitled to protection is whether they were planted jointly, or jointly cared for, or were treated as a partition between adjoining properties. In the instant case none of these attributes was proved by the plaintiffs.”

The Court held that one of the trees — being wholly on Keck’s land — was not involved in the dispute at all. As to the other three trees, the Court said, the Rhodigs had failed to prove a legal or equitable interest in them, meaning that the legal owner of the land — Mr. Keck — had the right to remove the encroachment.

The judgment was affirmed.

Two of the justices dissented, arguing that the majority of the Court had sanctioned conduct on the part of Mr. Keck which constituted a trespass and the destruction of co-owned property. Citing early English common law holding that (1) a tree which stood on a property line made the adjoining owners tenants in common of that tree, and (2) if one of the co-owners cut the whole he was liable for damages to the other, the dissenters argued that the Rhodig trees should come within that well-established rule. “To come within these rules a tree need not have been placed on the property line for the purpose of forming a border or boundary,” the dissenting justices said. “A tree which stands on a property line in a state of nature or one which has been planted by man is treated in the same way.”

THE ILLINOIS APPROACH: ALL YOUR TREE ARE BELONG TO US

If you didn’t following Internet culture (as oxymoronic as that phrase may be) back in 2001, you might not recognize the badly-mangled taunt “All your base are belong to us,” derived from the poorly-translated Japanese video game, Zero Wing. But it became a cult classic in 2001, and the melodious strains of the techno dance hit Invasion of the Gabber Robots can be heard in some corners of the ‘Net to this day.

Illinois doesn’t get into that “touchy feely” intent inquiry evident in Rhodig. In the state’s case, an elm tree stood on the boundary line between the Ridges and the Blahas. One can almost imagine Mr. Blaha — who was tired of the mess the elm made every fall — announcing to the tree that “you are on the way to destruction!” But the problem was that, contrary to Mr. Blaha’s belief, all the tree’s base did not belong to him, at least not just to him. The base of the tree straddled the property line.

The Ridge Court’s analysis was simple: the tree grew in both yards, and thus, the Ridges had an interest in the tree, as did the Blahas. This made the landowners tenants in common, and prohibited either from damaging the tree without permission of the other.

The Illinois view, which is the more common approach that Colorado’s “husbandry” test, is the prevailing view in the United States. In this case, the Court issued an injunction against Mr. Blaha prohibiting him from cutting down the tree. For great justice.

Ridge v. Blaha, 166 Ill.App.3d 662, 520 N.E.2d 980 (Ct.App. Ill. 1988). The Ridges sought an injunction against the Blahas to prevent them from damaging an elm tree growing on the boundary line between their respective properties. After living with the elm for many years, the Blahas tired of the tree’s unwanted effects and decided to remove it with the help of an arborist. The Ridges were not consulted, however, and when arborist Berquist came to remove the tree, plaintiffs objected that the tree belonged to them and that they did not want it destroyed.

The evidence showed that the base of the tree extended about 5 inches onto the Ridges’ property, but that the tree trunk narrows as it rises so that at a height of 1.25 feet, the trunk is entirely on Blahas’ side of the line. Photographs were also introduced which showed the tree interrupting the boundary line fence. The trial court found that no substantial portion of the elm’s trunk extended onto the Ridges’ property and that, as such, they did not have a protectable ownership interest in the tree. The Ridges appealed.

Held: The Ridges had a protectable interest. The Court held that the fact that a tree’s roots across the boundary line, acting alone, is insufficient to create common ownership, even though a tree thereby drives part of its nourishment from both parcels. However, where a portion of the trunk extends over the boundary line, a landowner into whose land the tree trunk extends had protectable interest even though greater portion of trunk lied on the adjoining landowners’ side of boundary. That interest makes the two landowners tenants in common, and is sufficient to permit the grant of an injunction against the adjoining landowner from removing the tree.

WHEN A TREE GROWS INTO A BOUNDARY – AND CAUSES A NUISANCE

Trees often don’t start out straddling property lines. Rather, they sprout as carefree saplings, but later grow above and below the ground without regard for metes and bounds.

Do you remember Flap Your Wings? It’s a great children’s book by P.D. Eastman, a story in which Mr. and Mrs. Bird suddenly find an oversize egg in their nest, placed there by a well-meaning stranger who found the orb on the ground and wrongly deduced it had fallen from the tree? They love and care for the egg, but it hatches into something that unexpectedly becomes a real nuisance in their nest.

When the Bergins planted a tree on their land in 1942, they had little idea that it would grow into a big problem. The tree thrived over 25 years, a great oak from a little acorn having grown, so to speak. (All right, it was an elm, but you take the point …) It expanded from its modest plot toward and across the boundary line with their neighbors, in the process knocking the neighbors’ chain link fence out of line, raising the sidewalk and causing drainage problems.

The Holmbergs argued that the tree was a nuisance, and demanded that the Bergins remove it. The Bergins argued that the tree was a boundary tree, and it thus belonged to both the neighbors and to them commonly. They thus could not be seen to be maintaining a nuisance.

The Court disagreed with the Bergins’ defense, ultimately adopting the rationale of the Colorado case of Rhodig v. Keck. It was the intent of the parties, the Court ruled, not the location of the tree, that governed whether the tree was a boundary tree.

Little trees don’t stay little

Here, the Bergins planted and maintained the tree exclusively. They and the Holmbergs neither treated nor intended the elm to be a boundary tree. Instead, the tree ended up straddling the boundary only by an accident of growth. No matter where the tree had grown to encompass, it remained the Bergins’ tree, and the court found it to be a nuisance.

The damage wrought by the tree makes an interesting comparison to the 2007 Virginia decision in Fancher v. Fagella on encroachment and nuisances. The tree’s shallow root system made remedies short of removal infeasible, and the roots seemed to run just about everywhere. The case is an excellent illustration of how the facts of the particular growth at issue can drive a court’s decision.

Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (Sup.Ct. Minn. 1969). The Bergins and Holmbergs were adjoining landowners in Minneapolis. In 1942, the Bergins planted an elm tree on their property about 15 inches north of the boundary line, and they have maintained the tree and have exercised sole control over it since that time. The Holmbergs bought their place 10 years later, and constructed a chain-link fence on their property 4 inches south of the common boundary line. When the fence was completed, the tree was 6 inches away from it and 2 inches away from the boundary line, so the tree did not touch or interfere with the fence.

By 1968, the tree was 75 feet high, with a trunk diameter of 2 1/2 feet, and it was protruding about 8 inches onto the Holmberg’s property. Its roots extended onto Holmberg’s property and pushed the fence out of line, making the use of a gate in the fence impossible. The tree was close to both houses and the roots, being cramped for room, have pushed up a large hump in the ground around the base of the tree. The roots raised the ground level from the base of the tree to the Holmbergs’ sidewalk and caused it to tip toward their house, resulting in drainage into their basement.

To fix the problem, the Holmbergs were forced to construct a new sidewalk, which — because of the tree roots — promptly cracked as well. The Bergins’ property value property would depreciate by $5,000 if the tree were removed.

Over the Bergin’s complaint that the tree was a boundary tree, the trial court found that the tree was a nuisance and ordered it removed by the Bergins at their own expense. No damages were awarded to the Holmbergs due to their failure to take advantage of earlier opportunities to remove roots. The Bergins appealed.

The parties had never agreed that the tree would mark their boundary – and this was important to the court

Held: The tree was a nuisance. The Supreme Court held that something more than the mere presence of a portion of a tree trunk on a boundary line is necessary to make the tree itself a ‘boundary line tree’ so as to bring it within the legal rule that it is owned by adjoining landowners as tenants in common.

Whether the tree marks the boundary depends upon the intention, acquiescence, or agreement of the adjoining owners or upon the fact that they jointly planted the hedge or tree or jointly constructed the fence.

Nothing in the record discloses any intention of the parties that the tree mark a boundary line between the properties. The law is clear that one cannot exercise his right to plant a tree in such a manner as to invade the rights of adjoining landowners. When one brings a foreign substance on his land, he must not permit it to injure his neighbor. And, the Court held, an injunction against the continuance of a nuisance — such as the one issued by the trial court — may be proper if it is necessary to a complete and effectual abatement of the nuisance.

It always seemed a little ironic that English common law needed an entire branch of jurisprudence known as “equity.” Oliver Wendell Holmes, Jr., famously lectured a litigant once that his courtroom was “a court of law, young man, not a court of justice.” It was precisely because there was so much law and so little justice that medieval England developed a parallel judicial system known as courts of equity, where litigants could get just results that were precluded in the courts of law by hidebound rules of pleading and damages.

The basis of equity is contained in the maxim “Equity will not suffer an injustice.” Other maxims present reasons for not granting equitable relief. Laches is one such defense.

Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their rights.” In other words, “you snooze, you lose.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend himself or herself after the passage of time from the date the wrong was committed. If the defendant can show disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the case should be dismissed in the interests of justice.

Ms. Garcia suffered encroachment from a copse of boundary-tree elms for a long time, perhaps too long a time, without doing anything about it. She could have trimmed roots and branches that intruded into her alfalfa fields years before – New Mexico law let her do that – but she fretted and stewed in silence. When she finally wanted to take action, the elms were so big that the trunks themselves had crossed the property line. Her “self-help” would have killed the trees.
The lesson? As the old TV box announcer used to adjure, “You must act now.”

Garcia v. Sanchez, 108 N.M. 388, 772 P.2d 1311 (Ct.App. N.M. 1989). This dispute between neighboring landowners involves trees originally planted on defendant’s property which have overgrown and now encroach upon plaintiff’s property. By the time Garcia bought her land in 1974, ten elm trees planted some years before near the common property line were well established. Although originally planted inside defendant’s property line, over the years the trees had reached full size, and had grown so that nine of them were directly on the boundary, with the trunks encroaching onto plaintiff’s property from one to fourteen inches.

Garcia used her land for growing field crops. Sanchez’s side had a driveway and residence. Garcia didn’t complain about the trees until 8 years after buying her property. Two years after her first complaint, she sued.

The trial court found Garcia’s actions in providing water and nutrients to her crops had caused the trees to grow toward her property, but it concluded that Sanchez negligently maintained the elm trees, allowing the roots and branches to damage the crops on Garcia’s property. The court also found that she has not suffered enough damage to warrant the removal of the trees, and that cutting any substantial portion of the trunks of the trees would seriously harm them. The court found that yearly trenching of the roots and trimming of branches on Garcia’s side of the property line would essentially resolve any problems resulting from the encroachment of tree roots and overhanging branches on her property, so it ordered Sanchez to pay $420.80 for damage to Garcia’s alfalfa, to yearly trench the roots and trim the branches of the trees, and to provide water and nutrients to the trees in order to restrict their growth toward plaintiff’s property.
The parties appealed.

Elms make good boundary trees

Held: The Court of Appeals reversed and remanded. It held that the trees originally planted inside a property line, which had grown to encroach onto adjoining property along boundary, were not jointly owned under the common boundary line test absent an oral or written agreement to have the trees form boundary line between the parties’ property. It agreed that the trial court’s refusal to order that Sanchez remove the encroaching trees was not an abuse of discretion, observing that the trial court had tried to balance equities by weighing the value of trees against the agricultural character of property involved and nature of harm suffered by Garcia.

But the Court of Appeals went further: it ruled that the harm caused to Garcia’s crops by the elms’ overhanging branches and tree roots is not actionable. Instead, following Abbinett v. Fox, the Court held that a plaintiff’s remedies are normally limited to self-help to protect against the encroaching branches and roots. But here, Garcia waited too long: her plan now, after years of suffering in silence, to remove a substantial portion of the root system or trunk of the encroaching trees (the Massachusetts Rule right) may endanger lives or injure Sanchez’s property, and that laches gives a court the right to limit the exercise of her self-help plan under its equitable authority.

The Court sent the case back to the trial court to determine whether Garcia’s failure to exercise self-help to control encroaching roots, branches and tree trunks over an extended period should preclude injunctive relief now.

Case of the Day – Tuesday, December 17, 2013

JUDGE JUDY HAS HER LIMITS, YOU KNOW

Ah, Cleveland! Renown for the Rock and Roll Hall of Fame, world leader in the manufacture of duct tape, home to some really good beer and some really bad teams …

Cleveland’s gift to the world

Add to that impressive string of achievements one more jewel: Cleveland gave the United States its first small claims court in 1913. The People’s Court was not far behind.

Small claims courts exist in every state of the country, informal courts of very limited jurisdiction (awards of a few hundreds or few thousands of dollars), places where lawyers and formality are rare indeed. It was to just such a place that Mr. Iny dragged Mr. Collom. It seems the roots of Mr. Collom’s tree were breaking up the walls of his neighbor’s garage. Now, any fan of the Massachusetts Rule would have told the neighbor to get out there with a shovel and ax, and cut the offending roots at the property line. Self-help is, after all, as American as … well, as the Massachusetts Rule.

Of course, self-help doesn’t mean you can go onto your neighbor’s property, and it seems the homes and garages in this Long Island town were packed together like sardines. Mr. Iny couldn’t dig up the attacking roots without going onto Mr. Collom’s place, and we’re suspecting from the decision that these two guys were not the best of friends. So Mr. Iny took him to court.
The small claims court awarded him $2,100 for damages. Being of limited jurisdiction, the court couldn’t order Mr. Collom to cut down the tree or dig up the roots, so money was all that was available. Mr. Collom appealed (something you never see happening on TV).

Great Lakes Brewery’s output is all good – the Christmas Ale is its best

The Supreme Court (which in New York State is not the state’s high court, but rather in this case just a court of appeals) reversed. The remedy here, the court said, shouldn’t have been money. It should have been to cut down the tree. But the small claims court lacked jurisdiction to do that. The Supreme Court itself didn’t have such constraints, so it reversed the money damages and instead ordered Mr. Collom to get rid of the tree.

The most interesting part of the decision is the lengthy and well-written dissent arguing that Mr. Iny’s tree claim was in fact a nuisance claim, and that money damages should have been awarded as well. The dissenting judge argued that New York has adopted its own tree encroachment rule, a hybrid of the Massachusetts and Virginia Rules (which itself has since this case been abandoned by Virginia). In New York, the judge concluded, a complainant has to resort to self-help first. If that fails, the courts will intervene if the tree can be shown to be a nuisance — that is, if the tree “is causing substantial interference with the use and enjoyment of plaintiff’s land, that defendant’s conduct is intentional or negligent.”

Of course, the discussion is found in a dissent to a fairly low-level, unreported decision, but it’s a thoughtful analysis of the encroachment rule in a state where precedent on the subject is sparse. Good reading on cold winter night … unless, of course, another episode of Judge Judy is on.

Iny v. Collom, 827 N.Y.S.2d 416, 13 Misc.3d 75 (Sup.Ct. N.Y., 2006). The roots of a tree situated on defendant’s property damaged the wall of a garage on plaintiff’s property. Plaintiff lacked the room to cut the roots out himself without trespassing on his neighbor’s land. He sought to get his neighbor to remove the objectionable tree, which he felt would have been the best way to fix the problem, but the defendant refused. Plaintiff sued in small claims to recover $2,100. The trial court awarded him this sum. Defendant appealed.

Held: The decision was reversed. The Supreme Court noted that a New York small claims court is a court of limited jurisdiction and lacks the authority to grant any equitable remedy, such as directing the removal of a tree. Under the circumstances presented, the Court ruled, “substantial justice would have been most completely rendered had the court awarded judgment in favor of defendant dismissing the action on condition that he remove the subject tree within a specified period of time”. But the trial court couldn’t do that. The Supreme Court could, however, and ordered the case dismissed, conditioned on defendant removing the tree within 60 days.

One justice dissented. He believed that the trial court’s judgment awarding plaintiff $2,100 in damages was based on a nuisance claim, and should have been affirmed. The dissent said the issue faced in the case was whether under New York law, a property owner whose property is being encroached upon and damaged by the roots of a neighboring property owner’s tree may successfully assert a cause of action sounding in private nuisance if the property owner’s resort to self-help is unworkable, and the property owner’s attempts at obtaining assistance from the neighboring property owner to abate the roots’ encroachment have been unsuccessful.

The dissent argued that to establish a cause of action for private nuisance, the plaintiff must show that the defendant’s conduct causes substantial interference with the use and enjoyment of plaintiff’s land and that defendant’s conduct is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the laws governing liability for abnormally dangerous conditions or activities. The interference can be caused by an individual’s actions or failure to act. Where a defendant has been put on notice that his activity is interfering with plaintiff’s use and enjoyment of his land and defendant fails to remedy the situation, the defendant ought to be found to have acted intentionally and unreasonably.

Remember – the dissent is the opinion of the losers

Furthermore, the dissent argued, “[u]nder New York law, a party is liable for failing to abate a nuisance [under a theory of negligence] upon learning of it and having a reasonable opportunity to abate it.” The question of whether there has been a substantial interference with plaintiff’s use and enjoyment of his/her property is one to be resolved by the trier of fact and involves a review of the totality of the circumstances based upon a balancing of the rights of the defendant to use his or her property against the rights of the plaintiff to enjoy his or her property. The balancing amounts to a risk-utility analysis weighing the social value of the conduct involved against the harm to private interests.

The dissent admitted that while the elements of a nuisance action appear straightforward, in New York there is a paucity of case law addressing nuisances arising from trees or other plant life. Nevertheless, the justice argued, there is substantial case law from jurisdictions outside New York, and he describes in detail the Massachusetts Rule, the Virginia Rule and the Hawaii Rule. The dissent concludes New York has “in large measure, adopted a hybrid approach somewhere between the Hawaii and Virginia Rules in determining the issue of nuisance liability. To sustain a cause of action for nuisance, a plaintiff must resort to self-help in the first instance, which does not appear to be a prerequisite under the Hawaii Rule. Once a plaintiff establishes that self-help failed or self-help was impracticable, he or she must (1) show sensible damage (this kind of “sensible” has nothing to do with common sense, but rather is an injury that can be perceived by the senses), (2) that defendant’s conduct is causing substantial interference with the use and enjoyment of plaintiff’s land, (3) that defendant’s conduct is intentional or negligent, and (4) that the continued interference with the use and enjoyment of plaintiff’s property is unreasonable.

Where a defendant has been notified that a tree was causing damage to plaintiff’s property and refuses to assist plaintiff in taking measures designed to abate the nuisance, the defendant should be found to have acted intentionally or negligently with regard to the nuisance. The unreasonableness of the interference will depend upon an overall balancing of the equities: the injuries to plaintiff and to defendant, the character of the neighborhood, the ongoing nature of the injury, and the nature of defendant’s actions.

Remember, the foregoing – while it may be eminently “sensible” in the meaning of the term – was the opinion of a lone judge, one who was outvoted. It makes for thoughtful reading. But don’t mistake it for the law.

Case of the Day – Wednesday, December 18, 2013

NOT A HAPPY BUNCH AT ALL

The Wong family, through their company Happy Bunch, LLC, was quite happy indeed with the nice piece of property the family occupied. The Wongs especially liked the 10 trees that lined one boundary. They had planted and nurtured them for 20 years or so, and the trees had gotten big enough that eight of them actually straddled the boundary line with their neighbor.

But what a hot dog the neighbor turned out to be! Grandview North was a developer, and planned a Wienerschnitzel franchise on the lot next door. The City required that Grandview add about four feet of fill to the lot, and Grandview was afraid the Wongs’ boundary trees would get in the way. Grandview had a survey done, and the company knew the trees were on the boundary line, with most of the trunks on the Happy Bunch land (two were entirely on the Happy Bunch side of the boundary). So what? After finding itself unsuccessful at getting Mr. Wong to consent to the trees being cut down, Grandview made its view grander by taking out the trees itself. Mr. Wong was done wrong …

Happy Bunch sued. The trial court ruled that Grandview owed $32,000 or so for the trespass to timber, but it refused to impose statutory treble damages, finding them not applicable to boundary trees.

The Court of Appeals, in a case of first impression, disagreed. It ruled that boundary trees in Washington State are owned by both landowners as common property, and neither may cut them down without the consent of the other. The Court ruled that damages when a boundary tree is cut down is the replacement value of the tree, apportioned by the percentage of the trunk on the injured landowner’s property, a method that strikes us as rather artificial and likely to undervalue the tree to the injured property owner. What, Happy Bunch gets half a tree back? There was a little justice, however: the Court of Appeals ruled that the treble damage statute for trespass to timber applied to boundary trees as well as other trees.

Happy Bunch, LLC v. Grandview North, LLC, 173 P.3d 959 (Wash.App. Div. 1, 2007). The Wong family owned land through its limited liability company, Happy Bunch LLC. Grandview, was a property development company that purchased a parcel of property next door the Happy Bunch property to build a Wienerschnitzel drive-through restaurant. The City of Mount Vernon required that four feet of fill be placed on the Grandview property as part of the planned development.

Twelve mature trees stood either on or near the boundary line between the Happy Bunch and Grandview properties. Some portion of the trunks of 10 of the trees — all originally planted by the Wongs some years before — extended from the Happy Bunch property onto the Grandview property. Grandview believed it couldn’t meet the city’s fill requirement without putting a retaining wall on the Happy Bunch/Grandview property line. Because the roots and trunks of the trees extended onto Grandview’s property, Grandview believed that they would interfere with the construction of the retaining wall and decided to move them, even though Grandview knew a survey showed the trees’ true location on the property line.

The Happy Bunch was not happy, not agreeing with the plan, and found through its own survey that the trees were either on the boundary line or entirely on the Happy Bunch land. Despite Happy Bunch’s opposition, Grandview cut down all ten trees. Happy Bunch sued, claiming that it had acquired title to the land under and around the trees by adverse possession due to the Wongs’ maintenance of the trees and surrounding area. It also sought damages for both the value of the cut trees and the estimated $15,065 cost of digging up the trees’ root systems and repairing damage to the Wongs’ driveway likely to be sustained as a result. Happy Bunch also requested that the entire award be trebled pursuant to Washington law because of Section 64.12.030 of the Revised Code of Washington, the state’s timber trespass statute, thus seeking a total damage award of $168,294.

The hot dog emporium franchisee bit off a little too much when he cut down the Happy Bunch’s trees

The trial court ruled that Grandview committed timber trespass by cutting the trees on the Wong/Grandview property line. The trial court took the damage figure to the trees of $40,033, and multiplied it by the percentage of the cut trees that had been growing on Happy Bunch’s property, resulting in damages of $32,519.22 to Happy Bunch on its timber trespass claim, as well as $2,500 for the cost of grinding out the remainder of the stumps. The court denied the damages of $15,065 for completely removing the trees’ root systems and repairing the resulting damage. Finally, the trial court ruled that Happy Bunch was not entitled to treble damages as provided by the timber trespass statute “[b]ecause the trees that were cut straddled the common property line.” Happy Bunch, LLC appealed.

Held: Judgment was reversed on most counts. The Court of Appeals concluded t Happy Bunch was only entitled to recover damages for injury to those portions of the trees growing on its land. However, the Court found that RCW §64.12.030’s treble damages provision did apply.

In most jurisdictions, a tree standing on a common property line is considered the property of both landowners as tenants in common. Although Happy Bunch admitted that courts commonly calculate damages based on the value of each cut tree, apportioned according to the percentage of the tree that was located on the injured landowner’s property, it contended that the proper approach here was the one applied in the Colorado case, Rhodig v Keck. Rhodig held that absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted, with damages calculated accordingly.

The Court of Appeals rejected Rhodig, holding that adoption of its rule would enable Washington landowners to effect boundary line adjustments with trees, creating “an entirely new theory of adverse possession without a basis in either the statutory or common law of this state.” The Court said the Rhodig holding would mean that Happy Bunch acquired title to the land under the trees simply because had once had planted the trees. Therefore, the Court held, a tree standing directly upon the line between adjoining owners so that the line passes through it is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other. Grandview had an interest in the trees proportionate to the percentage of their trunks growing on Grandview’s property, and thus, the trial court correctly awarded Happy Bunch only that portion of the trees’ value reflecting Happy Bunch’s property interest in them.

Happy Bunch contended that an award of treble damages was mandatory pursuant to RCW §64.12.030, unless Grandview proved one of the mitigating factors listed in the statute. The Court agreed, holding that the trespasser must allege and prove mitigation, and absent such a showing, treble damages will be imposed. The Court rejected Grandview’s argument that it believed it had a right to remove the trees, noting that Grandview possessed a survey that indicated that the majority of the trees were predominantly located on Happy Bunch’s property, and that at least two of the trees were not located on Grandview’s property at all. The Court said that where a person has been given notice that another has an ownership interest in trees, and the person nonetheless cuts them down, the actor will be liable for treble damages under the statute. Both the punitive and compensatory policies underlying the statute are implicated with respect to boundary line trees, the Court reasoned, and for that reason, the statute must be applied.

Case of the Day, Friday, December 20, 2013

SHOWING UP

Denise Pevarnek’s agent chopped down her neighbors’ trees so she’d have a better view of the river. The neighbors complained, but Denise steadfastly ignored their remonstrances. The neighbors sued, but Denise ignored the summons. She finally decided to start paying attention after a default was entered against her and the trial court intended to assess treble damages against her in the amount of $77,000.

Denise tried futilely to undo the consequences of her earlier indolence. Alas, a stitch in time saves nine. The Court ruled that she had had plenty of notice, but her decision to ignore the lawsuit was her problem, and undoing the default she so richly deserved would have turned her problem into her neighbors’ problem. And they were already smarting from the loss of their trees.

Of interest in the case — one argument she included in Denise’s scattershot but untimely defense— was her contention that the cost to replace the trees wasn’t the right measure of damages, and that the trial court was wrong to rely on an affidavit of an arborist that didn’t explain in detail how he had arrived at the damage costs. The Court rejected this, saying that in the case of trespass, the measure of damages is either the reduction in value of the property, or — where the property can be repaired — the cost to fix things. The goal of the damage award, according to the Court, is to come as close as possible to compensating the owner for the damages, and trial courts have a lot of latitude to choose the method that seemed more reasonably calculated to do so.

The affidavit, the Court noted, laid out the expert’s education and experience, showed that he had inspected the damaged real estate. and proposed a reasonable strategy for repairing the harm. The arborist listed what had to be done and how much he’d charge to do it. It might not be perfect, but perfection is often the enemy of “good enough.” The affidavit, the Court ruled, was “good enough.”

The Court reminded the defendant that if she really had found the damage showing to be flawed and superficial, she could have come to the hearing and contested it. Snooze and lose, indeed.

Bologna v. Pevarnek, Not Reported in N.W.2d, 2007 WL 4207801 (Mich.App., Nov. 29, 2007). Denise Pevarnek hired Chester Damiani to clean up her property. He was zealous to a fault, deciding that to improve the view of the Detroit River from her adjacent lot by cutting down trees belonging to her neighbors, the Bolognas. Believing that Denise and Chester’s conduct was baloney, the Bolognas sued for trespass, alleging that the destruction reduced the value of their property and exposed a view to Pevarnek’s unsightly neighboring property and asking for $28,000, trebled by Michigan’s wrongful cutting statute to $84,000.

Denise Pevarnek was served, but she didn’t answer, and the Bolognas got a default judgment. Thereafter, they presented an affidavit of a certified arborist that the cost of landscape restoration was $24,050. At this point, Pevarnek began taking action to defend, seeking to have the default undone. The trial court refused, and it entered judgment against her for $77,730. Pevarnek appealed.

Held: The judgment was upheld. Much of the case revolves around whether Denise Pevarnek should be relieved from her default judgment, and the Court of Appeals ruled, in essence, that she knew about the suit and did nothing. In other words, “you snooze, you lose.” But of interest in the area of tree law was Denise’s claim that the trial court was wrong in using the cost of replacing the trees as a measure of the damages the Bolognas suffered. The Court of Appeals said where the wrong consists of a trespass to property resulting in an injury to the land that is permanent and irreparable, the general measure of damages is the diminution in value of the property. If the injury is reparable or temporary, however, the measure of damages is the cost of restoration of the property to its original condition (if less than the value of the property before the injury).

The rule is, however, flexible in its application. The ultimate goal is compensation for the harm or damage done. Thus, a court may apply whatever method is most appropriate to compensate a plaintiff for his or her loss. Here, the Court said, given the fact that the Bolognas’ trees could be restored, it was proper for the trial court to use the cost-of-restoration method.

Pevarnek argued that the trial court erred by adopting without question the assertion of alleged damages without sufficient foundation. The plaintiff had filed an affidavit of arborist Steve McCollum, who swore that – in order to return the property to its pre-trespass condition, that is, with no view of Pevarnek’s property – 12 new trees had to be planted, some existing trees had to be replanted, the over-pruned trees had to be removed, and the lawn had to be repaired. He stated that the total cost of this work was $24,050. The trial court awarded plaintiffs damages of $77,730, equal to three times the sum of the cost of work proposed by McCollum and $1,860 for the cost of a privacy fence. Although McCollum’s affidavit didn’t explain how he calculated the damages, he stated his qualifications and education, he said he had personally inspected the Bologna property, assessed their needs, specifically listed the work to be done, and listed the cost for his business was to complete it. The Court said the expert affidavit put forth a reasonable basis for the damage computation, and that was enough.

Case of the Day, Monday, December 23, 2013

YOU’RE ON YOUR OWN, PAL

From the hatcheck to the parking lot to the dry cleaner to the amusement park, we grant pre-injury waivers of liability all the time. And we’re helpless to stop it. Don’t believe us? Try negotiating that fine print on the back of your parking lot ticket next time you leave the Mercedes in the hands of some teenager named “Kent Steerwell.” You’ll be handed your keys, probably with a suggestion of where to put them (and it won’t involve inserting them in the ignition, either)

Well, when expert Alpine skiing enthusiast Bill Rothstein parted with his hard-earned cash for a couple of souped-up passes to the Snowbird resort (your basic pass and a special one that let him skip lines and not have to mingle with the great unwashed), he signed the waivers without a second thought. You know, the ones that said the resort wasn’t liable for a ding-dong thing in case he got hurt.

While skiing the “Fluffy Bunny” run (hardly sounds like a double-diamond course, does it?) Bill ran into a poorly-marked retaining wall and messed himself up but good. Fortunately, his favored hand wasn’t injured, so he quickly signed off on a lawsuit against the ski operator. But the trial court was impressed by the breadth of the release Rothstein had signed — as tall as the Wasatch and as wide as the Bonneville Salt Flats — and it threw the case out.

But the Supreme Court saved Rothstein’s bacon. It held that, no matter what the pre-injury waivers said, Utah public policy required that ski resorts take responsibility for the results of their negligence. A statute ¬– the Inherent Risks of Skiing Act –exempted ski resorts from certain risks that are inherent in skiing — such as broken legs, frostbite, fashion faux pas — so that the operators could buy insurance against actual negligent acts.

The Court held that inasmuch as the legislature exempted ski resorts from certain types of risks so that they could afford insurance to cover the remaining ones, it was contrary to public policy for a ski resort to try to exempt itself from liability for any negligence at all. The Romans had a word for it: expressio unius est exclusio alterius. The waiver was void, and Rothstein was free to sue … if not to ski the “Fluffy Bunny.”

Rothstein v. Snowbird Corp., 175 P.3d 560 (S.Ct. Utah, 2007). “Fast Billy” Rothstein, an expert skier collided with a retaining wall while skiing at Snowbird Ski Resort. The retaining wall was unmarked and no measures had been taken to alert skiers to its presence. Although Snowbird had placed a rope line with orange flagging near the wall, there was a large gap between the end of the rope and a tree, which Mr. Rothstein incorrectly understood indicated an entrance to the Fluffy Bunny run.

No – not this kind of “law suit”

Rothstein sued Snowbird for negligence. Snowbird defended itself by asserting that Mr. Rothstein had waived his ability to sue Snowbird for its ordinary negligence when he purchased two resort passes that released the resort from liability for its ordinary negligence.

Rothstein’s super passes — which let him have faster access to the slopes than mere mortal pass-holders — required him to sign an agreement that said

“I hereby waive all of my claims, including claims for personal injury, death and property damage, against Alta and Snowbird, their agents and employees. I agree to assume all risks of personal injury, death or property damage associated with skiing … or resulting from the fault of Alta or Snowbird, their agents or employees. I agree to hold harmless and indemnify Alta and Snowbird … from all of my claims, including those caused by the negligence or other fault of Alta or Snowbird, their agents and employees …”

If that wasn’t enough, a second agreement he signed said,

“In consideration of my use of the Snowbird Corporation (Snowbird) ski area and facilities, I agree to assume and accept all risks of injury to myself and my guests, including the inherent risk of skiing, the risks associated with the operation of the ski area and risks caused by the negligence of Snowbird, its employees, or agents. I release and agree to indemnify Snowbird, all landowners of the ski area, and their employees and agents from all claims for injury or damage arising out of the operation of the ski area or my activities at Snowbird, whether such injury or damage arises from the risks of skiing or from any other cause including the negligence of Snowbird, its employees and agents.”

Read the fine print

The trial court thought these agreements were pretty comprehensive, not to mention dispositive. It granted summary judgment in favor of Snowbird. Quicker than you could say, “Fluffy Bunny,” Rothstein appealed.

Held: The trial court was reversed, and Rothstein was allowed to sue the ski resort. The Court held that releases that offend public policy are unenforceable. Under Utah’s Inherent Risks of Skiing Act, certain hazards inherent in skiing are defined. Resorts aren’t liable for those risks — like breaking a leg on a downhill run — thus clarifying the hazards sufficiently to enable the ski operators to by insurance against those risks that aren’t excluded.

The Court said that by expressly designating a ski area operator’s ability to acquire insurance at reasonable rates as the sole reason for bringing the Inherent Risks of Skiing Act into being, the Utah legislature “authoritatively put to rest the question of whether ski area operators are at liberty to use pre-injury releases to significantly pare back or even eliminate their need to purchase the very liability insurance the Act was designed to make affordable. They are not.” The premise underlying the passage of a law to make insurance accessible to ski area operators is that once the Act made liability insurance affordable, ski areas would buy it to blunt the economic effects brought on by standing accountable for their negligent acts. The Court said “the bargain struck by the Act is both simple and obvious from its public policy provision: ski area operators would be freed from liability for inherent risks of skiing so that they could continue to shoulder responsibility for noninherent risks by purchasing insurance.”

Inasmuch as the legislature had determined that resorts should insure themselves against risks not inherent in the sport of skiing, the Court held that it was contrary to public policy to permit an operator to duck liability for negligence that could have been avoided by requiring its patrons to waive claims for negligence as a condition of use.

Case of the Day – December 25, 2013

A CHRISTMAS PRESENT

No heavy lifting today (unless we’re talking really big presents, maybe a new chainsaw or something). Instead, we have an arboriculture law present for you from us.

We’re kidding, you say? Of course not. Here’s a little literary gem, a simple case in which the landowner sued a driver who careered off the road into a beloved oak tree. The tree was badly damaged, the owner said, and would need special care for the remainder of its days. The driver defended on jurisdictional grounds, arguing that Michigan’s “no fault” insurance law meant that the court could not assess property damages against him for the mishap.

The Court denied the landowner’s case, but it did so in verse:

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest
Upon a mangled tree’s behest;
A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must uphold the court’s decree.

“A wayward Chevy struck a tree,
Whose owner sued defendants three.
He sued car’s owner, driver too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.
The Oakland County Circuit Court,
John N. O’Brien, J., set forth
The judgment that defendants sought
And quickly an appeal was brought.”

Held:

“Court of Appeals, J.H. Gillis, J.,
Gave thought and then had this to say:
(1) There is no liability
Since No-Fault grants immunity;
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it’s termed,
Is due to be, and is,
Affirmed.”

Case of the Day – Thursday, December 26, 2013

IT JUST WASN’T HER DAY

We’re full of Christmas dinner, exhausted from a frenzy of gift-giving, and ready to get back to some tree law. So here goes …

Some days not much goes right. Heidi Cordeiro had a day like that. First, she heard a crash in her driveway, and looked out to see that a tree belonging to the hospital next door had fallen, crushing her car. Then, she hurried out to assess the damage, only fall over the branches of the downed tree, spraining her ankle. At least she didn’t have to hobble far to the emergency room.

She of course sued the hospital — who doesn’t like suing hospitals? — for the damage to her car and her ankle. Her case was essentially that the tree fell, so of course the hospital was negligent. The Superior Court made short work of her suggestion that landowners were strictly liable for falling trees, pointing out that in Connecticut, a plaintiff must plead (and of course later prove) that the landowner knew or should have known that the tree was diseased, decayed or otherwise dangerous.

Heidi couldn’t do that, and her case was dismissed, so we’ll never know whether liability would have extended to paying for Heidi not being careful where she stepped.

Held: Rockville Hospital was dismissed as a plaintiff. The Hospital argued the facts alleged in Heidi’s complaint did not give rise to any duty owed by the Hospital to the plaintiff, the falling tree was caused by an “act of God” for which the Hospital was not liable, and the falling tree was an open and obvious defect that the plaintiff should have avoided.

The Court observed that the essential elements of a negligence action were duty, breach of duty, causation and actual injury.Here, Heidi Cordeiro alleged that “a tree … belonging to the defendant … fell upon the yard and driveway area of the premises where the [plaintiff] resided [as a tenant], and when the plaintiff went out to look at the damage to the vehicle parked in her driveway, she was caused to trip and fall over the branches of said tree, causing her to sustain … injuries.”

In early times, there was generally no liability for trees falling on neighboring lands, an obvious practical necessity when land holdings were very large and in a primitive state, but the rule made little sense in urban settings. In urban areas like the City of Rockville, there is generally found to be a “duty of reasonable care, including inspection to make sure that the tree is safe.” It is now generally recognized, particularly in urban areas, that a tree owner has a duty to an adjoining landowner to exercise reasonable care to prevent an unreasonable risk of harm presented by an overhanging dead branch in a residential area. Thus, an invitee of commercial premises may recover for injuries sustained from the fall of a defective or unsound tree growing on adjoining premises, including trees of a purely natural origin.

However, the owner of a tree is liable for injuries from a falling tree only if he knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition. A landowner who knows that a tree on his property is decayed and may fall and damage the property of an adjoining landowner is under a duty to eliminate the danger. But a landowner does not have a duty to consistently and constantly check all trees on his property for non-visible rot. Instead, the manifestation of decay must be visible and apparent. In Connecticut, if the tree condition is one of which the defendant would become aware through reasonable exercise of its faculties, the defendant is chargeable with notice.

Careful pleading makes a difference

In this case, Ms. Cordeiro had to plead and prove facts showing that the Hospital knew or reasonably should have known the tree was diseased, decayed or otherwise constituted a dangerous condition, or other such proof of actual or constructive notice, in order to state a claim. But she made no such allegation here. Instead, she only alleged that the Hospital “was responsible for the proper maintenance of its trees and was responsible to assure that its trees did not fall into adjoining properties, causing injury.” The law does not require landowners to continuously examine their trees for invisible decay to assure they do not fall. Instead, it requires them to take action when there is actual or constructive notice of a dangerous natural condition.

Case of the Day – Friday, December 27, 2013

A TREE JUMPED OUT

Mr. and Mrs. Miller drove through a mall parking lot late one rainy, windy night, after the lights were turned out. The driver missed a sharp turn in the drive, and hit an 8″ wide tree. He and his wife were injured.

The Millers sued the mall for negligence, and to be sure, the tree showed evidence of having been hit before. The mall, however, argued that Mr. Miller was an idiot for driving too fast on a strange, unlit roadway in bad weather. It said he was contributorily negligence for the accident.

Back when this case was decided, contributory negligence was still the law of the land in most states. It was a Draconian doctrine: if the victim was negligent even a teeny bit, then he or she couldn’t recover a dime from the defendant, no matter how bad the defendant’s negligence by comparison. Since that time, contributor negligence has been replaced by “comparative negligence” most places. Comparative negligence is a percentage game: the jury finds that the defendant was, say, 70% negligent and the plaintiff was 30% negligent. The jury award of $100,000 to the plaintiff would then be reduced by 30%, netting out 70%.

Because contributory negligence was so harsh, courts often worked to find a way around its effect. Here, the Court ruled that although Mr. Miller might have been contributorily negligent, that couldn’t keep the passenger, Mrs. Miller, from winning damages from the mall. The mall argued that Mr. Miller should share its liability to Mrs. Miller, but the state had an automobile guest statute that immunized a driver from liability to his or her passengers for simple negligence.

The mall should have marked the tree with reflectors or something, the Court said. Something to reflect on …

Miller v. Baken Park, Inc., 84 S.D. 624, 175 N.W.2d 605 (Sup.Ct.S.D. 1970). Donald Miller’s pickup truck collided with a tree located in the Baken Park Shopping Center auxiliary parking lot. Miller had entered the Shopping Center from West Main Street intending to drive across the lot to reach Canyon Lake Drive, the street on the south side of the Center. They had never travelled over this area before but had seen others do so. It was a misty, gloomy night with wind and gusty rain. Suddenly, a tree loomed in front of them. Miller and his wife sued Baken Park, and Baken Park counterclaimed against Miller for negligence. The evidence showed a driver would have had to swerve to miss the tree, and the conditions that night made it hard to see after the shopping center lights were turned off at 10 p.m. The tree, which had an 8” trunk, bore scars from prior vehicle collisions. The trial court considered the question of Baken Park’s negligence, contributory negligence by Miller and other issues it deemed appropriate. The jury found for defendant and plaintiffs appealed.

Held: The trial court was reversed. The Supreme Court held that the evidence was sufficient to authorize finding that Baken Park was negligent in allowing a tree without reflectors or other warning devices to remain in an area that not only served as a parking lot for customers of its lessees, but in the area used by them as a driveway. The Court said that a shopping center owner that maintained control of its parking lots and driveway for express purpose of serving customers of its lessees owed the business invitees of its lessees a duty to keep the premises in a reasonably safe condition. What’s more, the fact that Miller may have been negligent in driving through the dark lot was not imputable to his wife in the absence of some control or authority over operation of the car by her. His negligence thus would not prevent her from recovering against the shopping center for injuries sustained because of the concurring negligence of her husband and a third person.

The shopping center’s counterclaim against Mr. Miller had been dismissed by the trial court. The Supreme Court agreed that dismissal was proper under South Dakota’s guest statute, which immunizes a driver from liability to a passenger unless he was acting with recklessness or willful conduct. The Court held that the statute applied even to accidents on private property, and thus, Baken Park’s counterclaim against Miller had to be dismissed.

Case of the Day – Monday, December 30, 2013

FINDERS KEEPERS

Someone reminded us recently of a sad Ohio news story a few years ago about a contractor who found a wad of money in the walls of a house he was fixing up for a new owner. The contractor and the owner and — finally — the descendants of a prior owner — all became embroiled in litigation, and in the end, the lawyers got virtually all of it. Shades of Jarndyce v. Jarndyce!

The outcome left us wondering what Ohio law had to say about “treasure troves,” those little bundles of cash, jewelry, art or old Hostess products that people occasionally stumble over. It turns out that the answer is, it depends on whether the property is lost, abandoned, stolen or mislaid. If it’s lost or abandoned, it turns out, that bratty neighbor kid you used to play with was right: finders keepers.

In today’s case, a very lucky cop found thousands of gold and silver coins scattered on a city street at 4 a.m. He picked them up, and then, being a dutiful cop, turned them in. The owner never stepped forward — and we bet there’s a story in that — so after about a year, the police officer sued for ownership.

The City opposed him, arguing that the money was located on its street and the policeman was on its time clock when he found them. None of that mattered, the Court said. All that counted was that the lost or abandoned property was found by Officer Baker, who thus had ownership rights superior to anyone other than the rightful owner.

Baker v. City of West Carrollton, Case No. 9904 (Ct.App. Montgomery Co., August 7, 1986) (unpublished), 1986 WL 8615. Police officer Charles Baker found a large number of gold and silver coins scattered on a West Carrollton public street. After reporting the find, he and city employees picked up 6,871 gold and silver coins and placed them in the police property room. When no one stepped forward to claim them, Baker sued to establish his right to the money. The City counterclaimed, arguing that the money was found on its street, and Baker was its employee, so the money belonged to it. The trial court agreed, and awarded the money to the City. Baker appealed.

Held: The money belonged to Baker, not the City. The money was considered to be “lost” or “abandoned” property. Under Ohio common law, a finder who takes possession of “abandoned property” acquires absolute title. A finder of a lost article, although he does not by such finding acquire an absolute property or ownership, has a prior claim thereto as against everyone except the actual owner. The rule is practically absolute and is not affected by special circumstances of the character of the thing found, the place of finding, or the relation of the finder to the third person, even where the finder is the employee of the owner of the premises.

At common law a finder who takes possession of lost property has a duty to protect the property; to seek the true owner, and to return the property to the true owner on demand. The state had no right to found property as against the finder. Although Ohio law governs disposition of lost or abandoned property by police departments, the law requires the property to be turned over to persons with a right of possession, and Ohio courts have held that a finder of lost property which is unclaimed by the true owner is a person “entitled to possession of property” under that law. Officer Baker was such a person.

West Carrollton argued that since Baker is a police officer he should not receive a reward for performing his duty. The Court agreed that rewards for police officers’ performance of their duties aren’t appropriate, but it said that the City’s award analogy was strained. It held that Baker’s primary duty was to the true owner of the coins, and he got no reward for that.

Many states have statutes that require people who trespass on land and remove trees to pay multiple damages, most commonly three times the value of the timber but in some states double damages. Usually, the statute requires that the person trespassing and removing trees have some culpability more than mere negligence. The notion is that people who recklessly or intentionally cut down someone else’s trees need a disincentive to their conduct, and awarding a multiple of damages is intended to discourage them from their nefarious deeds.

But like any good statute (look at the federal RICO statute for proof of this) the opportunity for misuse of the law is rife. In today’s case, we start with your garden-variety adverse possession case. And it turns out the plaintiff really had taken his neighbor’s property by adverse possession over a period of more than 20 years. But when the record owner of the land – a company – cut down some trees on land its title said belonged to it, the adverse possessor not only sued to quiet title (that is, to obtain title to the other guy’s land he’d been squatting on), but wanted treble damages for the timber his neighbor, the erstwhile owner, had cut.

The Massachusetts Land Court wisely declined the plaintiff’s invitation, ruling that if your title still says the land is yours, you hardly have “good reason to believe that the land on which the trespass was committed” wasn’t yours. The squatter already was getting title to land he had never bought, a judicial act some would call unjust enrichment. Giving him treble damages for the cutting down of some trees by the record owner would really be “piling on.”

Mendes v. William P. Bachant & Pocaro, LLC, 15 LCR 308, 2007 Mass.LCR Lexis 84, 2007 WL 1874768 (Mass.Land Ct., June 29, 2007). George Mendes bought land in 1969. At that time, a shed stood at the rear of the parcel, and in fact intruded on land owned by a man named Gleason. Neither Mendes nor the prior owner had permission to locate a shed on Gleason’s land, and apparently no one was aware that the shed was in the wrong place. Gleason sold the land in 1969 to the Bachants. In the 1970s, Mendes installed a garden and trellis on the disputed land. 1981, Mendes replaced the shed with a larger shed which further encroached, and built a stockade fence from behind the shed which enclosed the area in dispute. Again, he did this with permission and apparently without knowledge that he was intruding. Somehow, the Bachant Company figured out that it held title to the disputed land, and in 2005, its workers tore down the fence, tore up the garden, and cut down and removed trees in the disputed area.

Mendes sued, claiming the land by adverse possession and asking damages for trespass to trees. He demanded treble damages under Massachusetts G.L. c. 242, §7 for the destroyed timber. The Bachant Company unsurprisingly said that Mendes was full of beans, that he had failed to establish what portion of its property he adversely possessed, and had not proven the elements of dominion and control or open and notorious possession sufficient to establish his claim of adverse possession. The trial issued a temporary restraining order enjoining the Bachant Company from undertaking any construction or related activities on the disputed land. After trial, the court made findings.

Held: The land now belonged to Mendes by adverse possession. The Court ruled that his possession had been actual, exclusive, and nonpermissive, exercising dominion and control for a continuous period of at least 20 years.

The Bachant Company argued that because the land was undeveloped woods, a stricter rule applied, and Mendes was required to have enclosed the area he possessed. The Court agreed that where a party claims adverse possession of woodlands, it must also demonstrate that the land at issue was either enclosed or reduced to cultivation and, in contrast, title by adverse possession cannot be shown to wild or woodland that has always been, and remains, open and unenclosed. But, the Court said, Mendes had shown that he enclosed the area by a stockade fence since approximately 1981, that he has cultivated a vegetable garden within that enclosure, that he has placed a shed and trellis upon the land in the disputed area, built a barbeque pit, and that he has planted trees and shrubs in various locations.

Aside from the enclosure or cultivation, the Court said, Mendes’ remaining activities upon the land constitute dominion and control over the area in that the shed, trellis and barbeque pit are “permanent improvements on the lot” and that the planting of trees and shrubs coupled with the clearing of the land are “significant changes to the land itself.” Furthermore, Mendes met the stricter standard imposed upon woodland parcels in the enclosure of a substantial portion of the disputed area with a stockade fence and the cultivation of a vegetable garden within the same enclosure, coupled with the aforementioned additional activities. That didn’t apply to the non-enclosed areas, however. Mendes did not get title to those portions of the disputed area where the activities engaged in did not amount to cultivation or where those activities were not enclosed by the stockade fence sufficient to demonstrate the requisite dominion and control of a woodland parcel.

As for the trespass to trees, the Court observed that under G.L. c. 242, §7, a person who without right to do so cuts down and removes another’s trees and timber is liable for treble damages. Mendes contended the Bachant Company unlawfully entered his land, and removed all of the trees and brush up to but not beyond his shed. The Bachant Company argued that it was entitled to enter onto the land pursuant to its record title. The Court didn’t buy either argument, but it observed that the statute permitted treble damages only where the trespasser did not have “good reason to believe that the land on which the trespass was committed was his own.” Here, the Court said, the Bachant Company’s record title indicated it owned the disputed area. Thus, even if damages were appropriate, treble damages wouldn’t apply. Anyway, the Court said, the trees were cut from the non-enclosed area of the disputed land, and because the Court concluded that Mendes did not possess the non-enclosed area adversely, the Bachant Company wasn’t required to pay any damages. All the Company had done was to cut trees from land that was still its property.